indian law reports delhi series 2012 - delhi high court

INDIAN LAW REPORTS

DELHI SERIES

2012(Containing cases determined by the High Court of Delhi)

VOLUME-1, PART-II(CONTAINS GENERAL INDEX)

EDITOR

MR. A.S. YADAVREGISTRAR (VIGILANCE)

CO-EDITORSMS. NEENA BANSAL KRISHNA

(ADDITIONAL DISTRICT & SESSIONS JUDGES)

REPORTERS

MR. CHANDER SHEKHAR MS. ANU BAGAI

MR. TALWANT SINGH MR. SANJOY GHOSE

MR. GIRISH KATHPALIA MR. K. PARMESHWAR

MR. VINAY KUMAR GUPTA (ADVOCATES)

MS. SHALINDER KAUR MR. KESHAV K. BHATI

MR. V.K. BANSAL JOINT REGISTRAR

MR. L.K. GAUR

MR. GURDEEP SINGH

MS. ADITI CHAUDHARY

MR. ARUN BHARDWAJ

(ADDITIONAL DISTRICT

& SESSIONS JUDGES)

PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI,

BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054.

I.L.R. (2012) I DELHI Part-II (February, 2012)

(Pages 453-816)

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650

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NOMINAL-INDEX

VOLUME-I, PART-II

FEBRUARY, 2012

Pages

Ami Chand & Anr. v. Jai Prakash and Ors. .......................................... 460

Anand Singh v. Anurag Bareja & Ors. .................................................. 728

Bajaj Allianz General Insurance Co. Ltd. v. Somveer Singh

& Ors. ............................................................................................ 754

Customs v. Mohammad Bagour ............................................................ 711

Customs v. Konan Jean ......................................................................... 776

Commissioner of Income Tax-II New Delhi v. Moderate

Leasing & Capital Services Ltd. ..................................................... 684

Commissioner of Income Tax Delhi IV v. I.P. India Pvt. Ltd. ............ 699

Daya Ram Verma & Ors. v. Securities & Exchange

Board of India ................................................................................. 527

Durga Dass Banka v. Shri Ajit Singh & Ors. ........................................ 607

Dr. Bimla Bora v. Dr. Shambhuji .......................................................... 747

EX. SI Lakhwinder Singh v. Union of India & Ors. ............................ 766

Hemant Sharma & Ors. v. Union of India and Ors. ............................. 620

Jaffar Abbas v. Mohan & Ors. ............................................................. 789

K.R. Builders Pvt. Ltd. v. DDA ............................................................. 541

Kathuria Public School v. Union of India .............................................. 652

Lal Chand Public Charitable Trust v. Delhi Wakf Board & Ors. .......... 799

Madhu Gupta v. M/s. Gardenia Estates (P) Ltd. .................................. 558

Mohan Singh v. Union of India & Ors. ................................................. 705

Madhurika Sharma & Ors. v. Smt. Bhagwati Devi Sharma

& Anr. ............................................................................................ 538

National Highways Authority of India v. M/s. Bhageeratha

Engineering Ltd. .............................................................................. 548

New Okhla Industrial Development Authority v. KM Paramjit

& Anr. ............................................................................................ 617

Neeta Mehra v. Sanjay Mehra ............................................................... 645

Niranjan Lal Gupta & Anr. v. Gurmeet Singh Baweja & Ors. .............. 757

Prem Kumar v. State ............................................................................ 681


Panna Lal & Ors. v. Anjit Kumar Jha & Ors. ....................................... 805

Prof. Ram Prakash v. Bangali Sweet Centre ......................................... 808

Rajinder Rai v. MCD and Ors. .............................................................. 453

RDS Projects Ltd. v. Jai Ratangiri Gas and Power Pvt. Ltd.

& Ors. ............................................................................................ 490

Raju @ Ranthu @ Raju Kumar, Sanjay Kumar v. State ....................... 736

Raju Chakravarthy v. State of NCT of Delhi ........................................ 638

Santosh Kumar Jha v. UOI & Ors. ....................................................... 473

Shiv Nath Choudhary Ram Dass v. NDMC & Ors. ............................. 578

Ved Prakash v. Sri Om......................................................................... 598

Zahid Parwez v. UOI & Ors. ................................................................ 566

(ii)

(i)

order, the way others did not to bring about change in legal

position now respondent cannot be allowed to make grievance

and reopen the closed litigation—Also held, the date of decree

remains the same as date of award but the decree is not

enforceable for a period of 90 days in view of Sec.36 of

1996 Act, which is a window given to the judgment debtor

to make payment failing which rigours of enforecement would

come into play, so interest is liable to be paid till decree is

satisfied.

K.R. Builders Pvt. Ltd. v. DDA ................................... 541

— Section 34—Limitation—Award dated 20.03.10 aganist

Petitioner pronounced and certified copies sent by the Arbitral

Tribunal by registered post to Petitioner's corporate office in

Delhi, which was the address in the cause title of proceedings

before the Tribunal and also in the OMP before the Hon’ble

High court—Respondent filed application under Sec. 33(4) of

the Act and notice was served on the counsel for Petitioner

on 26.04.10, so on 17.05.10 counsel for Petitioner appeared

before the Tribunal and claimed that the Petitioner had not

received copy of award, but this contention was rejected by

the Tribunal on 31.05.10 observing that postal receipts and

AD cards were on record—Tribunal passed amended award

on 09.09.10 and again sent certified copies to the parties by

registered post on 01.10.10—Petitioner’s Project Director at

Salem wrote letter requesting for formal copy of amended

award, in reply where of Secretary to the Tribunal informed

having already sent the same, but without prejudice to rights

of parties, another was sent and the same was received by

the Petitioner on 20.12.10—Petition challenging the award filed

on 15.03.11, and as per Petitioner, the objections are within

time—Held, the memo of parties before the Arbitral Tribunal

as well as the OMP indicated address of the Petitioner as its

corporate address in Delhi, where the award and the amended

award were sent by registered post by the Tribunal—In the

(iv)

(iii)

NOMINAL-INDEX

VOLUME-I, PART-II

FEBRUARY, 2012

ARBITRATION ACT, 1940 AND ARBITRATION &

CONCILIATION ACT, 1996—Applicability—Disputes

between the parties culminated into award dated 12.08.96,

wherein money was awarded in favour of appellant along with

interest from date of award till date of payment or decree,

whichever earlier—Both parties understood that the award was

governed by the Act of 1940 as the reference was made prior

to coming into force of 1996 Act—Appellant filed application

under Sec. 14 & 17 of the 1940 Act, in which Hon’ble Singh

Judge vide order dated 27.05.2002 held that in view of law

prevaliling by way of apex Court judgment, the award

enforceable as decree withoutany application as it is 1996 Act

that was applicable and since no objections were filed under

Sec. 34 of 1996 Act within time, the objections were

dismissed—Neither side challenged order dated 27.05.2002,

which became final and the appellant filed execution

proceedings in which respondent on 12.06.2003 paid the

awarded money with interest calculated from date of award

till 27.05.2002—Thereafter, the appellant claimedinterest from

27.05.2002 to 12.06.2003, but withdrew the application—

Thereafter, the apex court gave a re-thought to the then

existing legal position, effect where of was that the award in

question was liable to be governed by the 1940 the Act, under

which interest was liable to be paid only till expiry of 90 days

from award, so respondent under Sec. 151 CPC claimed that

interest paid for period beyond 90 days from date of award

till 27.05.2002 was excess payment and liable to be refunded—

Hon’ble Single Judge allowed the application—Appeal—Held,

order dated 27.05.2002 was based on the then prevalent legal

position and since the respondent did not challenge the said

respondent when only remedy available to respondent was to

file appeal—Order dismissing application for restoration of

divorce petition was passed on merits and could not have been

recalled by Trial Court in exercise of its inherent power—

Held—Application under Order 9 Rule 4 was rejected only for

want of payment of maintenance amount and since respondent

could be said to have paid said amount with said undertaking

there was no reason left for Court to deny prayer of

respondent to seek restoration of his divorce petition—

Matrimonial disputes need to be adjudicated on its merits;

substantive rights of parties cannot be defeated by adopting a

hypertechnical approach, that too on basis of procedural

niceties—Procedural laws are handmaids of justice and cannot

come in way of advancing cause of justice—No merit in

petition which is hereby dismissed.

Neeta Mehra v. Sanjay Mehra ...................................... 645

— Section 100—Second appeal—Suit for mandatory and

prermanent injunction filed by Appellant praying for decree

directing Respondent no.1 to remove unauthorized construction

in the shop and to further restrain him from carrying out any

further construction therein—Suit filed inter-alia on the ground

that father of the Respondent no.1 had given an undertaking

to remove unauthorized construction before the Hon’ble

Division Bench by an earlier order dated 22.08.1975—It was

alleged that appellant come into possession after the death of

his father and despite an undertaking given by his father, had

raised unauthorized construction on the roof of the shop—

Appellant though had filed his affidavit in evidence and had

also been partly examined but he could not appear further

because of his illness, being aged—Fresh affidavit filed by his

son as attorney—suit dismissed by Trial Court observing that

attorney had not deposed anywhere that he had personal

knowledge about the facts of the case—First Appellate Court

also dismissed the appeal—Held, as a special power of attorney

(vi)(v)

absence of Petitioner informing any other address for dispatch

of communications, it was not the duty of the Tribunal to

make enquiries about proper adddress of parties for the

purposes of communications—As such, the Arbitral Tribunal

fully complied with Sec. 31(5) of the Act—Further,

proceedings under Sec. 33 also show that parties knew about

passing of award and Petitioner knew of sending of award to

its Delhi office, but Petitioner made no efforts to send the

same to its Salem office—Accordingly, Petition held time

barred.


Engineering Ltd. ............................................................. 548

CODE OF CIVIL PROCEDURE, 1908—Order IX Rule 7—

Application filed ten years after the defendants were proceeded

ex parte—Default explained only on the ground that the

defendants are housewives, who had engagged a lawyers and

were not aware of the proceedings—Held, mere engaging the

lawyers does not take away duty of the litigant to prosecute

the case diligently, so trial Court rightly dismissed the

application under Order IX Rule 7 CPC.

Smt. Madhurika Sharma & Ors. v. Smt. Bhagwati Devi

Sharma & Anr. ............................................................... 538

— Section 115, 151 Order 9 Rule 43 Rule 1(c)—Application to

restore divorce petition which was dismissed in default,

dismissed because of non compliance of direction to liquidate

liability towards arrears of maintenance ammount—

Respondent filed application under Section 151 CPC for

restoration of divorce petition and paid part of arrears of

maintenance and undertook to pay balance in three months—

Matrimonial Court allowed application and restored divorce

petition—Order challenged before High Court—Plea taken,

Trial Court committed jurisdictional error by invoking power

under Section 151 CPC to restore divorce petition filed by

son of Appellant was authorized to depose in place of his

father—Neither his evidence could be rejected nor an adverse

inference drawn on the ground that plaintiff himself had not

appeared as his own witness—The question to be considered

only was whether attorney holder son of plaintiff had deposed

something which was only in the personal knowledge of the

plaintiff or some act to which only plaintiff was privy to—

The factum of the undertaking being given to the Division

Bench could not have been something exclusively in the

personal knowledge of Appellant alone—The Copy of order

of Hon'ble Division Bench proved on record by son of

Appellant as his attorney.

Shri Durga Dass Banka v. Shri Ajit Singh & Ors. ... 607

— Section 96—Limitation Act, 1963—Section 5—Suit for

declaration and permanent injunction filed for restraining the

appellant from abolishing the suit property and interfering in

the peaceful possession—Trial Court vide judgment dated

01.05.2010 decreed the suit—Appellant filed appeal after a

delay of 78 days with application under Section 5 of limitation

Act—Earlier counsel changed—New counsel requested earlier

counsel to hand over the record—Provided only 26.06.10—

Inspection report dated 07.01.2005 found missing—Certified

copy made available on 28.07.2010 Held—The words

'sufficient cause as appearing in Section 5 of the Limitation

Act have to be construed liberally so as to advance substantial

justice to the parties; a litigant should not be shut out at the

threshold and be deprived of the opportunity to be heard on

merits; dealy may be condoned provided that the applicant is

able to furnish a sufficiently justifiable explanation for his

delay— No hard and fast rule can be laid down—Each case

has to be decided on its factual matrix—Unless there is lack

of bona fides or a total inaction or negligence on the part of

the litigant, the protection of Section 5 should not be deprived

to a party, mistake of a counsel may also amount to a

sufficient cause for condonation of delay; it is always a

question of fact—In the instant case, keeping in view the

explanation furnished by the learned counsel for the petitoner

the petitioner should not be declined a hearing on merits for

the fault which at best is attributable to his counsel—Order

set-aside.

New Okhla Industrial Development Authority v.

KM Paramjit & Anr. ..................................................... 617

— Section 96; Indian Contract Act, 1872—Section 74—Suit of

Appellant/proposed buyer for recovery of earnest money paid

under Agreement to sell, dismissed—HELD—Claim to forfeit

amount is a claim in the nature of liquidated damages under

Section 74 of Contract Act—Seller under an agreement to sell

cannot forfeit amount unless loss is pleaded and proved by

him on account of breach of contract—Appeal allowed—Suit

decreed.

Anand Singh v. Anurag Bareja & Ors. ....................... 728

— Order VII Rule 11—Petition against rejection of application

u/o 7 Rule 11—Suit for damage on account of libel and

slander-whether plaint discloses cause of action—Held—

Defendant's contention that alleged defamatory statement is

protected by an absolute privilege indeed a defense raised by

Defendant—Court precluded from going into the same while

dealing with application u/O 7 R. 11—Held Cause of action

is bundle of facts—Only after trial it will be known whether

averments qualify as absolute privilege or not Petition

Dismissed.

Dr. Bimla Bora v. Dr. Shambhuji ............................... 747

— Order XXXIX Rule 1&2—Election dispute—Election for the

posts of President and vice President of Managing Committee

of Defendant No.3 held by postal ballot from members across

the country—Plaintiff No.1 and Plaintiff No.2 contested for

(viii)(vii)

President and Vice President respectively—During counting

it was observed that some ballot papers had been tampered

with by erasing the tick mark placed against the names of

plaintiffs and putting tick mark against the names of

Defendants No. 4&5 on ballot papers—Plaintiffs claimed that

these tampered ballots be read in their favour—Defendant No.1

proceeded with declaring defendants No. 4&5 as President

and Vice President—Plaintiffs contend that the rejected ballots

be counted in their name—Held, prima facie it appears that

the disputed ballot papers have been tampered with, but going

by the claim of Plaintiffs, since these votes had been cast in

presence of Plaintiffs, Election officer had no option but to

reject the same and therefore, Plaintiffis connot claim

themselves to be winning candidates—Since the dispute

between the parties is only with respect to these ballots, which

are invalid, vote having been cast in the presence of plaintiffs,

there is no ground to order re-election at this stage and no

case for interim injunction made out.

Niranjan Lal Gupta & Anr. v. Gurmeet Singh Baweja &

Ors. .................................................................................. 757

— Order XXII Rule 10—Suit filed by the plaintiff M/s DLF

Universal Ltd. aganist five defendants including respondent no.

1 Delhi Wakf Board, stating inter alia that the piece of land

measuring 1410 Sq. Yards forming part of the land of the

petitioner had been encroached by the respondents—Written

statement filed by the respondents—Respondent no.1

contended therein that it already had a decree dated

29.01.1983 in its favour and since the decree that remained

unchalllenged the land now was in his share—Applicant herein

namely Lal Chand Public Charitable Trust filed an application

under Order XXII Rule 10 in 1996 while the suit had been

filed in 1982 stating therein that after a settlement deed dated

1989, the MCD became owner of the said land—Submitted

that MCD is not contesting this suit as in another litigation

between the parties it had allowed the case to be dismissed in

default—If case is not contested it would suffer the same

fate—It would result in jeopardizing its interest as it was lessee

in respect of the said land—Held, Order XXII Rule 10

postulates that suit can be continued by the person on whom

the petitioners interest has devolved which in this case is MCD

and not the Applicant who had been a lessee since 1963 in

the said land and his status not changed since then.

Lal Chand Public Charitable Trust v. Delhi Wakf Board &

Ors. .................................................................................. 799

— Order VI Rule 17—Eviction petition by respondent seeking

eviction of petitioner from ground floor of premises bearing

no. 138-A, Golf Links, New Delhi, on the ground of bonafide

requirement for residence of its Director Amit Deep Kohli—

Leave to defend filed on 23.07.10—Application seeking

amendment of the leave to defend filed on 09.05.2011—Amit

Deep Kohli is a Director in other holding companies of the

petitioner—Other properties available with Company for

residence—Tenant is an old lady staying alone—Petitioner

submitted, Landlord was a construction company carrying on

construction activity—Other properties were commercial flats

not part of Delhi—Application seeking leave to defend

dismissed—Petition—Held—The facts which were sought to

be incorporated by amendment i.e. that the landlord Company

was a part of a huge Real Estate Group of Companies having

several properties in their name were all facts known to the

tenant—These facts were pre-existing i.e. existing at the time

when the application for leave to defend was filed; if such an

application is permitted the whole purpose and intent of the

provisions of Section 25 B (4) would be defeated as the

specifically stipulated period for filing an application for leave

to defend within 15 days would be given a go by and by

permitting the amendment there would be an automatic

extension of time for filing the application for leave to

(x)(ix)

defend—This could not and was not the intend of the statute.

Ms. Madhu Gupta v. M/s. Gardenia Estates

(P) Ltd. ........................................................................... 558

— Order XVI—Appellant in the pending suit filed an application

for payment of rent from October 2008, in terms of the lease

deed before Civil Judge—Which was dismissed. Appeal

preferred against the said order was also dismissed. However

as per the modified order Court directed the respondent to

deposit in Court within one month an amount calculated at

the rate of Rs. 30,000 per month, from October 2008 till 6th

August, 2009. That the said amount was further directed to

be kept in a fixed deposit and to abide by the final decision of

the Court. Respondent preferred a Special Leave Petition,

which was dismissed, however compliance of order dated 6th

August 2009, was extended by two weeks without prejudice

to the right of the parties. Appellant filed Contempt Case (Civil)

No. 789/2009 against respondent for not complying with the

order dated 6th August, 2009. The same was however

dismissed in limine on 12th October, 2009. The same was

however dismissed in limine on 12th October, 2009 observing

that since the order dated 6th August, 2009 was in the nature

of direction under Order XVA of the CPC, the remedy of the

appellant was by way of execution and not by way of

contempt. The appellant thereafter applied for execution of the

order dated 6th August, 2009/30th October, 2009 and it was in

fact in pursuance to the said execution that the amount came

to be deposited as aforesaid by the Respondent. Thereafter

the appellant filed an application being CM No. 15956/2011

in the disposed of Contempt Case (Civil) No. 789/2009 again

seeking release of the amount. The said application was also

dismissed by the learned Single Judge vide order dated 26th

August, 2011, again in view of the direction in the order dated

6th August, 2009 being for deposit of the amount in the Court

and there being no direction for release thereof to the appellant,

which was challenged. Held: When the action of a party/litigant

before the Court is found to be irrational, illogical and injurious

to the others, to not come to the rescue of a litigant in such

a situation would not be rendering justice for which the Courts

have been set up. Justice is a virtue which transcends all

barriers. Neither the rules of procedure nor technicalities of

law can stand in its way. It is the duty of the Court, as a

policy, to set the wrong right and not allow the perpetuation

of the wrongdoing—Deposited amount directed to be released

immediately.

Prof. Ram Prakash v. Bangali Sweet Centre.............. 808

CODE OF CRIMINAL PROCEDURE, 1973—Section 204,

256—Respondent filed complaint under Section 402, 406, 506

IPC against petitioner—In pre Summoning evidence, he

examined himself and one more witness who was not named

in list of witnesses as his witness—Summoning order was

passed by learned Metropolitan Magistrate and case was listed

for pre-Summoning evidence—Aggrieved by summoning

order, petitioner challenged it and urged, one of the witness

namely Sh. Raj Singh examined at pre summoning stage, was

not named in list of witnesses which caused injustice to

respondent—Also, on other grounds summoning was bad in

law—Held:- Non-compliance of Section 204 (1A) is not an

illegality which renders subsequent proceedings null & void,

but it is a curable irregularity—If no prejudice is caused to

accused, trial shall not be vitiated.

Ved Prakash v. Sri Om ............................................... 598

— Section 313—Petitioner convicted under Section 379/34 IPC

for committing theft of a pipe and a copper plate from solar

system installed at terrace of barrack No. 5, New Police Lines,

Kingsway Camp—Petitioner challenged his conviction in Court

of learned Additional Sessions Judge which was upheld but

he was ordered to be released on probation—Aggrieved by

(xii)(xi)

said judgment, petitioner preferred revision urging, during trial

he was not represented through legal aid counsel which caused

him great prejudice—Also, testimony of prosecution witnesses

were inconsistent and contrary which did not inspire

confidence—Held :- The Courts employ the concept of

prejudice to aid in remedying the injustice—Not examining

accused persons strictly in compliance to Section 313 Cr.P.C.

is grave—The opportunity granted under Section 313 Cr.P.C.

must be real and non illusionary—Questions must be so

framed as to give to accused clear notice of cricumstances

relied upon by prosecution, and an opportunity to render such

explanation as he can of that circumstance—Each question

must be so framed that accused can understand it and

appreciate what use the prosecution desires to make of the

same agnist him—Accused not examined strictly in compliance

of S.313 and was not given opportunity to cross examine

witnesses—Material prejudice caused to occused—Acquited.

Prem Kumar v. State ................................................... 693

CONSTITUTION OF INDIA, 1950—Article 226—Petitioner/

Appellant Licensee of a shop and also of an area behind the

shop containing all drainage including gully traps and manholes

with underground drainage pipeline for waste water to be

taken to municipal drains—License cancelled in respect of the

said area behind the shop because of the Petitioner/Appellant

not providing access through his shop to the said area as per

the term of the license—During submissions it was urged on

behalf of the petitioner / Appellant that Petitioner was willing

to give undertaking to provide access to the said area for

maintenance, cleaning etc.—Held, location of the area shows

that it was a common area within the meaning of Delhi

Apartments Ownership Act, 1986—Though this was not the

reason for the cancellation of the license but the Court in

exercise of powers under Article 226 of the Constitution of

India, cannot grant relief contrary to law—It being the

common area Court can not confer an exclusive right in

respect of the said area to the Petitioner / Appellant.

Mohan Singh v. Union of India & Ors. ..................... 705

— Article 226—Delhi Municipal Corporation Act, 1957—Section

345 A—Premises bearing No. 147-B, Gujjar Dairy, Gautam

Nagar, New Delhi were registered under the National Capital

Territory of Delhi (Incredible India) Bed & Breakfast

Establishment Registration and Regulation Act, 2007—

Respondent served notice upon the petitioner that property is

being used for commerical purpose in violation of sanctioned

use—Called upon to stop the misuse otherwise it would be

sealed—Petition challenged the notice—Respondent

contends—Premises visited by Monitoring Committee

appointed by Supreme Court of India on 14.09.2011 and

directed MCD to seal the subject premises—Held—Any Action

on the part of respondent/MCD to seal subject premises

without the petitioner being afforded a personal hearing, would

amount to violation of principles of natural justice, praticularly

when the settled law is that rules of natural justice must be

read into Section 345-A of the DMC Act—It is clear that

neither has the petitioner been heard on the issue of misuse

of premises, subject matter of the notice dated 18.09.2011

issued by the respondent/MCD under Section 345-A of the

DMC Act, nor has he been afforded an opportunity to submit

any representation, much less be heard on the issue of

ownership of land on which the built-up structure stands,

which was the subject matter of the noting dated 03.10.20111,

made by a member of the monitoring Committee.

Rajinder Rai v. MCD and Ors. .................................... 453

— Writ—Prevention of Corruption Act, 1988—Section 19—

Sanction for prosecution accorded for offence committed in

Mumbai—FIR registered in Mumbai—Charge sheet filed

before Special Judge, Mumbai—Territorial jurisdiction—Copy

(xiv)(xiii)

of formal order of sanction not made available—Earlier, on

more that one occasion sanction to prosecute not granted—

Grant of sanction challenged as arbitrary and malafide and

amounts to review of earlier decisions—Held—Court at Delhi

does not have territorial jurisdiction to entertain the petition—

Challenge could be made before the Special Judge—Sanction

order contains detailed for according the sanction—The

sanction could not have issued by anyone below the Minister,

the matter never gone in the past to the Minister—Case does

not fall in the category of extreme and rare nor there is any

ex-facie illegality in the sanction accorded—Petition dismissed

with costs.

Santosh Kumar Jha v. UOI & Ors. ............................. 473

— Art. 226 Writ—Tender—interpretation of commercial

contract—Petitioner challenged the order dated 04.10.2010

scrapping/cancelling tender no.6724/T-138/08-09/SPL/24, as

petitioner was L-1 of respondent no.1, vide writ petition no.

8252/2010, Respondent no.1, took the plea that he exercised

its right as owner under Article 28.1 of the Tender

document—Writ petition withdrawn with liberty to take

recourse to legal remedy in accordance with law—Respondent

no.1 with respondent no.2 and respondent No. 3 floated fresh

tender no. 6724/T-183/10-11/SKG/28 with amendment

pertaining to clause 8.1.1.1. dealing with past experience of

the bidder in executing a similar work—Challenged the

amendement in clause 8.1.1.1 plea of malice, arbitrariness,

unresonablenes and lack of fairness—Held—Respondent no.1

withheld completion report received from Dy. Chief Engineer-

IV Mus Car Nicobar island while seeking independent input

from respondent no.2—Raised certains queries followed by

series of letters—integrity of the entire process was suspect—

Decision of respondent no.1 dated 04.10.2010 fraught with

malice in law, contrary to the principles of fairness, equity

and good conscience—Amended clause 8.1.1.1 bad in law.


& Ors. ............................................................................. 490

— Article 227—Securities and Exchange Board of India Act,

1992—Sections 24 (1) and 27 Respondant filed a complaint

before Ld. CMM for the offence under Section 24(1) and 27

of the Act against M/s. Master Green Forest Ltd—Allegations

that accused company was operating collective investment

scheme—Raised huge amount from General Public in

contravention of the Act and Regulation—There were

allegations against the promoters/Directions and the persons

responsible for the day to day affairs of the company, who

actively connived with each other in the commission of

offence—Only company was arrayed as an accused—ld.

ACMM vide its order dated 15th December 2003 observed—

Perusal of the complaint discloses commission of offence

Punishable under Section 24 (1) and 27 of the Act and

accordingly, all the accused be summoned for 21 February

2004—Petitioners filed the present petition seeking quashing

of the proceedings pending against them—Petitioners

contended—Petitioners were not arrayed as accused—No

summons were issued to them vide order dated 15.12.2003—

In the garb of filing fresh addresses of accused, complainant

filed the list of the directors—Trial Court issued the summons

without application of mind—As no summons were issued

at the first instance, petitioner should not have been summoned

as directors except as provided under Section 319 Cr.P.C—

Respondent contended that no case for quashing is made

out—Ingredients in the complaint discloses commission of

cognizable offence against petitioners also—Held—Indubitably,

the Court takes cognizance of the offence and not the

offenders—No doubt in the memo of parties filed along with

the complaint only the company was made an accused

however, perusal of the order dated 15th December, 2003

(xvi)(xv)

summoning the accused shows that the Learned ACMM has

used the word “accordingly all the accused be summoned for

21st February, 2004” the use of these words show that the

Learned ACMM was conscious of the fact that besides the

accused company i.e M/s. Master Green Forest Limited there

were other accused also—Further the complaint clearly stated

that the Directors and Promoters of the company who were

the persons in-charge and responsible for the day-to-day

affairs of the Company and all of them actively connived with

each other for the commission of the offence—Thus, the role

of promoters and Directors was specifically mentioned in the

complaint—It was further mentioned that accused company

and its promoters and Director in-charge and responstble to

the accused company for the conduct of its business were

liable for the violations of the accused company as provided

under Section 27 of the SEBI Act—Thereafter opportunities

were giving to Respondent to furnish the details so that process

could be issued aganist the accused—Thus, it is not as if all

of a sudden vide the order dated 13th October, 2006 the

accused were summoned. In view of the facts of the present

case the contention of the Petitioner that the summons having

not been issued in the first instance by the Learned magistrate,

the Learned Additional Sessions Judge could not have issued

the summons unless the stage under Section 319 Cr.P.C. was

arrived at, deserves to be rejected.

Daya Ram Verma & Ors. v. Securities & Exchange Board

of India ........................................................................... 527


1992—Sections 24 (1) and 27—Respondent filed a coomplaint

before Ld. CMM for the offence under Sections 24(1) and

27 of the Act against M/s Master Green Forest Ltd—

Allegations that accused company was operating collective

investment scheme—Raised huge amount from General Public

in contravention of Act and Regulations—There were




offence—Only company was arrayed as an accused—Ld.



punishable under Section 24(1) and 27 of the Act and




Contended—No specific role is assigned to them in the

complaint—Merely stating that all the Directors and promoters

connived with each other and were in-charge and responsible

for the day-to day functioning of the company cannot fasten

the vicarious liability on the petitioners—Respondent contended

that no case for quashing is made out—Ingredients in the

comlaint disclose commission of cognizable offence—Held—

Complaint clearly stated that the promoters and Directors of

the Company in-charge and responsible for the conduct of

its affairs have connived with each other and have committed

the offence—In the present case the offence alleged is of

running a collective investment scheme contrary to the

provisions of SEBI Act and Regulations—No doubt Section

27 of SEBI Act makes responsible all other Directors of the

company who are responsible and in-charge of the day-to day

affairs of the company, however in a case of conspiracy

number of people can be involved and this is the allegation of

the Respondent in the complaint. Thus, I find no merit in the

contention that even on the facts of the present case no case

for proceeding aganist the Petitioners are made out.


Board of India ............................................................... 527

— Article 226—Writ —Narcotic Drugs and Psychotropic

Substance Act, 1985 (NDPS Act)—Section 68(H) (I) Section

(xviii)(xvii)

68 A(2) (d)—Section 68 B(g)—Section 68 j—Prevention of

Illicit Traffic in Narcotic Drugs and Psychotropic Substance

Act, 1988 (PITNDPS Act)—Section 3(1) and 10(1)—

Detention order dated 26.07.1989 issued aganist Mohd. Azad

@ Avid Parvez, brother of the petitioner—Detained w.e.f.

10.07.1991—Declaration u/s. 10(1) justifying detention

beyond initial three months issued—Detention order dated

26.07.1989—challenged before Calcutta High Court—

Unsuccessful—Special Leave Petition before the Supreme

Court dismissed—Challenge to order u/s.10(1) successful—

Detention beyond initial three months vitiated—show cause

notice u/s. 68 H (1) NDPS Act issued to the petitioner—reply

submitted—Daclaration issued and properties forfeited to the

Central Government vide order dated 16.10.1997—Appeal

before the Appellant Authority—Dimissed vide order dated

07.06.1999—Order challenged through the present writ

petition under Article 226—Plea that the properties were

acquired by his father for him not taken before the Competent

Authority nor before the Appellate Authority—No document

filed either before the Competent Authority nor before the

Appellate Authority —Held—Plea after thought—Cannot be

raised for the first time in the Writ petition—The burden of

proving that the property was not illegally acquired on the

person affected—The consistent findings do not call for any

interfernce—Petition dimissed with costs.

Zahid Parwez v. UOI & Ors. ...................................... 566

— Article 226—Petition to restrain the respondent/NDMC from

removing the petitioner from the sites occupied by them till

the enactment of an appropriate legislation, in terms of the

directions issued by the Supreme Court in the case of Gainda

Ram—Respondent contended—Simply because legislature has

not enacted a law, it cannot be said that there existed a

vacuum—In Sodan Singh case Supreme Court directed for

immediate eviction of unauthorised squatters/hawkers—Held—

(xx)(xix)

On the question of how to ascertain the implication of a status

order passed by a Court in the case of Messrs Bharat Cocking

Coal Limited (supra), it was observed by the Supreme Court

that the expression, ‘status quo’ is undoubtedly a term of

ambiguity and at times, gives rise to doubt and difficulty and

in case any party has any doubt on the meaning and the effect

of the status quo order, the proper course for such a party

would be to approach the Court that had passed the status

quo order, to seek clarifications—It would not be appropriate

for this Court to grant stay orders in the face of the status

quo order dated 15.07.2011 passed by the Supreme Court—

It was reiterated that any such order shall be an anti-thesis

to the orders of the Supreme Courts which must be respected

both, in letter and spirit—In such circumstances, any interim

orders to the petitioners declined —However, liberty granted

to both the parties to apply to the Supreme Court for a

clarification of the status quo order dated 15.07.2011 passed

in the case of Gainda Ram (supra).

Shiv Nath Choudhary Ram Dass v. NDMC

& Ors. ............................................................................. 578

— Article 19 & 226—Petition seeking mandamus to direct

resondent No. 1 to take appropriate steps so that respondent

No. 2 i.e. All India Chess Federation does not ban/threaten to

ban chess players, associating themselves with other chess

associations—Petitioners were chess players registered with

respondent No. 2—Petitioners being amateurs liked to play

chess whenever an opportunity presented itself even in those

tournaments not organised by respondent no. 2—Respondent

No. 2 prohibited chess players registered with it from playing

in any tournament/competition which did not have the approval

of respondent No. 2—This is highly monopolistic and anti

competitive and exploiting its dominant position to impose such

unreasonable restriction on the rights of players—Respondent

contended that there was statutory obligation on the part of

(xxii)(xxi)

respondent No. 1 to issue directions as sought for—Held—

The definition of the expression ‘enterprise’ as used in the

Competition Act read with definition of “service” thereof,

clearly shows that the respondent no. 2 is an enterprise which

is covered by the said provisions—The allegation against

respondent no. 2 is that respondent no. 2, by virtue of its

agreement with the petitioners, was seeking to control the

provision of services which was causing adverse effect on

competition within India, in as much as, the chess players

registered with respondent no. 2 were not free to form another

association or to organize tournaments and participate therein,

without facing the consequence of losing their registration with

respondent no. 2 which is the nationally recognized sports

federation for the sports of chess—The power of this Court

under Article 226 of the Constitution of India extends to the

issuance of appropriate directions, orders or writs for

enforcement of any of the rights conferred by Part III of the

Constitution or for any other purpose—Since in the present

case the petitoner has brought to this Court's notice the

aforesaid state of affairs in relation to respondent no. 2 the

said aspects need thorough investigation under the provisions

of the Competition Act by the Competition Commission—

There could be breach of the petitioners fundamental right to

freedom, resulting from the policies and practices of

respondent No. 2, as guranteed under Article 19(1)(c) and

19(1)(g) of the Constitution of India—Directions issued to

Competition Commission to enquire into the alleged

contravention of the Provisions of Section of 3 and Section

4 by respondent no. 2 by its aforesaid constitutional provisions

and conduct under Section 26 of the Competition Commission

Act, 2002.

Hemant Sharma & Ors. v. Union of India

and Ors. .......................................................................... 620

CUSTOMS ACT, 1962—Section 120—Respondents were

apprehended on their arrival IGI Airport on suspicion of

carrying some contraband substance—Notice under Section

50 of The Act and under Section 120 of Customs Act served

upon them giving them an option to get themselves and their

baggage searched before Gazetted Officer of Customs or a

Magistrate—Respondents did not know either Hindi or English

language, thus an official from KAM Airlines who knew

language of Respondents, explained contents of notices to

them—On Knowing contents, Respondents opted search by

Custom Officer—On search of baggage, Heroin was found

concealed in bottom portion of bag in cotton cloth belt—After

fulfilling requirements of Act, Respondents were charge

sheeted for offences punishable under Section 21, 23 & 28

of Act—On conclusion of trial, they were acquitted after

finding lacunas in prosecution case and procedural safeguards

contained in Section 50 of Act were not adhered to—Appellant

challenged acquittal in appeal—It was urged on behalf of

appellant that notice under Section 50 of Act was not required

to be served upon Respondents as recovery was effected

from hand bag and not from his person—Held:- Provisions

of Section 50 of NDPS Act, are mandatory and non

compliance renders recovery of illicit article suspect—Thus,

non compliance of these provisions is viewed seriously and

adverse inference is drawn against prosecution, particulary,

when accused has denied that he has served any such notice

and it has created doubt with regard to truthfulness of

prosecution witnesses.

Customs v. Mohammad Bagour .................................... 711

DELHI MUNICIPAL CORPORATION ACT, 1957—Section






(xxiv)(xxiii)





















DELHI RENT CONTROL ACT, 1958—Section 25B, 14(1)(e)—

Code of Civil Procedure, 1908—Order VI Rule 17—Eviction

petition by respondent seeking eviction of petitioner from

ground floor of premises bearing no. 138-A, Golf Links, New

Delhi, on the ground of bonafide requirement for residence

of its Director Amit Deep Kohli—Leave to defend filed on

23.07.10—Application seeking amendment of the leave to

defend filed on 09.05.2011—Amit Deep Kohli is a Director

in other holding companies of the petitioner—Other properties

available with Company for residence—Tenant is an old lady

staying alone—Petitioner submitted, Landlord was a

construction company carrying on construction activity—

Other properties were commercial flats not part of Delhi—

Application seeking leave to defend dismissed—Petition—

Held—The facts which were sought to be incorporated by

amendment i.e. that the landlord Company was a part of a

huge Real Estate Group of Companies having several

properties in their name were all facts known to the tenant—

These facts were pre-existing i.e. existing at the time when

the application for leave to defend was filed; if such an









(P) Ltd. ........................................................................... 558

INCOME TAX ACT, 1961—Section 260A—Assessee a limited

company engaged, inter-alia, in the business of investment in

shares—Assessee debited loss on sale of shares amounting

to Rs. 1,34,06,274/- as business loss—Assessee submited, it

was an investment company and investing in shares of other

companies, was its main business—Any Profit and loss on

sale of shares accounted for business loss—AO was of the

view that even an investment company could hold shares

either as stock-in-trade or as an investment—In which

particular segment assessee was holding particular shares

would depend upon the initial purchase as that would reflect

the intention of the Company to this effect—Assessing Officer

rejected the contention of the assessee, on the grounds

assessee has been consistenly showing these shares as

investment in the Balance sheet filed with the returns of

income—From the date of its purchase in 1997 till sold in

2004 there was no transaction of sale of these shares—Order

of Assessing Officer affirmed by CIT(A)—Tribunal,

however, allowed the appeal treating the sale of shares as

(xxvi)(xxv)

business income taking into consideration first that sale of

shares in earlier assessment year had been credited in revenue

account of the assessee and second revenue had accepted this

position in Assessment Year 2003-04—Held, as per

Memorandum / Articles of Association investment in shares

was one of the main objectives of the Company—Shares in

question were alway shown as investment—Shares were

treated as investment in every year till there sale in the Blance

Sheet—Assessee was maintaining two portfolios, one was the

investment portfolio and the other was the business portfolio—

The shares in question were show in the investment

portfolio—Once these factors are taken into account merely

because in the previous year the sales transaction was reflected

in the Profit & Loss Account and was not detected by the

Assessing Officer, would not be sufficient to upset the findings

of the Assessing Officer based on over all appreciation of

facts—Appeal allowed.

The Commissioner of Income Tax-II New Delhi v. Moderate

Leasing & Capital Services Ltd. .................................. 684

— Section 260A—Assessee a private limited company—

Assessing Offiicer while computing assessment u/s 143(3)

made observation that assessee received share application

money in cash from three private limited company in violation

of section 269SS and therefore, should be treated as deposits

and as a consequence of that liable for penalty under Section

271D—Plea raised by the assessee that the share application

monies received by the Company pending allotment of shares

do not amount to loan or deposit, accepted by CIT(A) and

Tribunal—Appeal preferred by Revenue—Held, there is a

distinction between loan and the deposit—In case of loan

ordinarily the duty of the debtor is to seek out the creditor

and to repay the money—A loan grants temporary use of

money or temporary accommodation, whereas in case of

deposits it is generally the duty of the depositor to go to the

bank or the depositee and make a demand for it and the

essence of the deposit is that there must be a liability to return

it the party by whom the deposit was made on fulfillment of

certain conditions—Receipt of share of application monies

from the three private limited companies for allotment of

shares in the assessee company cannot be treated as receipt

of loan or deposit—Appeal declined to be admitted.

The Commissioner of Income Tax Delhi IV v.

I.P. India Pvt. Ltd. ....................................................... 699

INDIAN CONTRACT ACT, 1872—Section 74—Suit of







decreed.


INDIAN PENAL CODE, 1860—Section 402, 406, 506—Code

of Criminal Procedure, 1973-204, 256—Respondent filed

complaint under Section 402, 406, 506 IPC against petitioner—

In pre Summoning evidence, he examined himself and one

more witness who was not named in list of witnesses as his

witness—Summoning order was passed by learned

Metropolitan Magistrate and case was listed for pre-

Summoning evidence—Aggrieved by summoning order,

petitioner challenged it and urged, one of the witness namely

Sh. Raj Singh examined at pre summoning stage, was not

named in list of witnesses which caused injustice to





(xxviii)(xxvii)

Baniyan of one of appellant—It was urged on behalf of

appellants “last seen” circumstance not proved as deceased

was allegedly taken away by appellants around 4:30 p.m. but

his body found on next date morning around 7 a.m. the time

gap was large being 12 hours and during this time possibility

of any other perpetrator of crime other than appellants cannot

be ruled out—Held:- Last seen theory comes into play where

the time-gap between the point of time when the accused and

the deceased were seen last alive and the deceased is found

dead is so small that possibility of any preson other than the

accused being the author of the crime becomes impossible—

Testimony of prosecution witness not conclusive as regard

to last seen theory.

Raju @ Ranthu @ Raju Kumar, Sanjay Kumar v.

State ................................................................................. 736

JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2000—Section 15, 16—Appellant/accused

was juvenile at the time of commission of murder, but suffered

imprisonment for over 10 years, which is three times the

maximum period prescribed under the Act—Not an appropriate

case to send the appellant to Juvenile Justice Board as the

same would be grave injustice—Conviction quashed.

Raju Chakravarthy v. State of NCT of Delhi ............. 638

— Section 15, 16—Appellant/accused was juvenile at the time

of commission of murder, but suffered imprisonment for over

10 years which is three time the maximum period prescribed

under the Act—Not an appropriate case to send the appellant

to Juvenile Justice Board as the same would be grave

injustice—Appellant not interested to challenge his

conviction—Conviction upheld, sentence set aside and benefit

of Sec. 19 of the Act, granted.




— Section 379, 34—Code of Criminal Procedure, 1973—

Section—313—Petitioner convicted under Section 379/34 IPC
























— Sections 302, 34—Appellant convicted for having committed

murder of one Sh. Saual—Prosecution case rested on

circumstantial evidence i.e. last seen evidence, recovery of

weapon of offence, recovery of sleepers (Chappals) of

deceased worn by him at the time of incident and blood stained

(xxx)(xxix)

LAND ACQUISITION ACT, 1894—Sections 4, 6 & 48—Land

measuring 80 bighas 7 biswas situated in village Rangpuri @

Malikpur Kohi (Vasant kunj) Tehsil Mehrauli notified under

section 4 and 6 of the Act vide notification dated 23.01.1965

and 26.12.1965 respectively followed by an award passed in

the year 1981—Petitioner alleged that possession of aforesaid

land was not taken by the Government—Land purcahse by

petitioner No. 3 Shri Ram Saroop Kuthuria as karta of HUF

vide sale deed dated 18th April 1967 executed by Smt. Saroop

devi, Smt. Sarjo and Smt. Bartho—Petitioner sought release

of land under Section 48—Petitioner claimed to be running a

school under the name and style of Kuthuria Public School

since 1988 on the said land—Representation moved on

17.08.1995 01.01.1996 and 11.11.1996—No response to the

representations—Petition seeking direction to direct the

respondents to decide the representations and not to demolish

any part of building—Respondent contended—Possession of

entire land taken except 9 Biswas where some built up

structure was found—Petitioner No.3 purchased the land after

notification under Section 4 of Act—Raised illegal construction

during pendency of earlier writ petition without any sanction

from the competent Authority—Representations were placed

before De-notification committee—Rejected—Petitioners have

no right—Held—Since De-notification Guidelines issued by the

Government do not permit de-notification of land in question,

which the petitioners purchased after issuance of notification

under Section 4 of Land Acquisition Act, no ground exist to

direct the Government either to de-notify this land or to re-

consider the representations of the petitioners—The writ

petition dismissed—The interim orders passed in favour of the

petitioners during pendency of the writ petition are vacated.

Kathuria Public School v. Union of India .................. 652

LIMITATION ACT, 1963—Section 5—Writ petition dismissed

in default on 03/05/11—Restoration applicant under Sec. 5 of

the Act—Application contended that his counsel expired in

June, 2003 and although son of the counsel had contacted

the petitioner, seeking instructions, but due to illness, the

petitioner residing in Punjab could not come to Delhi and

under these circumstances when the matter came up for

hearing on 03/05/2011, neither the petitioner nor his counsel

could appear which led to dismissal of writ petition in default—

Despite opportunity the respondents did not file reply—Held,

the applicant has been able to make out sufficient cause, so

both the applications allowed and writ petition restored.

EX. SI Lakhwinder Singh v. Union of India

& Ors. ............................................................................. 766

— Section 5—Suit for declaration and permanent injunction filed

for restraining the appellant from abolishing the suit property

and interfering in the peaceful possession—Trial Court vide

judgment dated 01.05.2010 decreed the suit—Appellant filed

appeal after a delay of 78 days with application under Section

5 of limitation Act—Earlier counsel changed—New counsel

requested earlier counsel to hand over the record—Provided

only 26.06.10—Inspection report dated 07.01.2005 found

missing—Certified copy made available on 28.07.2010 Held—

The words 'sufficient cause as appearing in Section 5 of the

Limitation Act have to be construed liberally so as to advance

substantial justice to the parties; a litigant should not be shut

out at the threshold and be deprived of the opportunity to be

heard on merits; dealy may be condoned provided that the

applicant is able to furnish a sufficiently justifiable explanation

for his delay— No hard and fast rule can be laid down—Each

case has to be decided on its factual matrix—Unless there is

lack of bona fides or a total inaction or negligence on the part

of the litigant, the protection of Section 5 should not be

deprived to a party, mistake of a counsel may also amount to

a sufficient cause for condonation of delay; it is always a





set-aside.


KM Paramjit & Anr. ..................................................... 617

MOTOR VEHICLE ACT, 1988—Section 96 (2)(b)(ii)—Driving

licence of offending driver was valid upto 23.01.1988 and he

took the same from Court on 31.07.1989 for renewal, but in

the intervening period, the accident in question occurred on

16.07.1988—Tribunal exonerated the insurance company on

the ground that at the time of accident the offending driver

did not hold a valid driving licence—Appeal—Held, insurance

company connot be absolved of its liability to pay in the

absence of evidence on record to show that the offending

driver was disqualified from holding an effective driving

licence.

Ami Chand & Anr. v. Jai Prakash and Ors. ............. 460

— Appeal impugns order dated 24.03.2011 of the Motor

Accidents Claims Tribunal (MACT)—Appellant denied liability

as driver had no valid licenese at the time of accident and this

constituted a breach of policy condition as proved by the

insurance company—The compensation awarded under the

non-pecuniary head towards inconvenience, hardship,

discomfort frustration, mental stress and other compensation,

towards loss of amenities of life are challenged as being one

and the same. Held—The award of compensation under the

different heads by the Tribunal was fair in light of the injuries

suffered by the victim and the Court found no reason to

interfere with award.


& Ors. ............................................................................. 754

— Appellant sought enhancement of compensation in respect of

injuries suffered by him in a motor accident which led to

amputation—Appellant claimed that due to his injuries his

chances of promotion have been hampered and his

compensation was barely enough to cover his medical

expenses. Held—In assessing compensation during accident

cases, a reasonable and compassionate view must be taken

and the court must be liberal in determining quantum—

Compensation increased and accordingly appeal allowed.

Jaffar Abbas v. Mohan & Ors. ................................... 789

— Appellant seeks enhancement of compensation in respect of

deceased's re-employment and pension—The Tribunal had

determined that only the handicapped Appellant No. 3 was

dependent and not the husband and the son—Respondent No.

3 claimed that income tax was incorrectly taken and thus the

compensation would differ. Held—Since the dependent by

deceased on herself was her handicapped daughter, the amount

spent on personal expenses would be less 1/3rd income instead

of 5% was liable to be deducted—Compensation calculated

accordingly—Further, income tax also deducted—Award

calculated. Amount accordingly.

Panna Lal & Ors. v. Anjit Kumar Jha & Ors. ......... 805

NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCE

ACT, 1985—Section 21, 22, 23 & 28—Appellant challenged

judgment acquitting Respondent for offences punishable under

Section 21, 22, 23 & 28 of Act—As per prosecution,

(xxxii)(xxxi)

Respondent was apprehended by Air Custom officer at IGI

Airport, New Delhi, on suspicion of carrying Heroin

concealed in 70-75 capsules inside his body—On permission

from learned Duty Magistrate, Respondent was taken in RML

Hospital where he ejected 77 capsules—After complying with

the provisions of the Act, Respondent was arrested and on

conclusion of investigations, he was charge sheeted—Learned

Special Judge found various discrepancies in prosecution case

and thus acquitted Respondent—Acquittal challenged urging,

no discrepancy in link evidence which was duly proved by

prosecution beyond reasonable doubt—Held:- A criminal trial

is a quest for truth—The prosecution is required to prove its

case beyond reasonable doubt and not by way of perfect proof

free from all blemishes.

Customs v. Konan Jean ................................................. 776

— Section 21, 23, 28, 50, 57, 67—Customs Act, 1962—Section

120—Respondents were apprehended on their arrival IGI

Airport on suspicion of carrying some contraband substance—

Notice under Section 50 of The Act and under Section 120

of Customs Act served upon them giving them an option to

get themselves and their baggage searched before Gazetted

Officer of Customs or a Magistrate—Respondents did not

know either Hindi or English language, thus an official from

KAM Airlines who knew language of Respondents, explained

contents of notices to them—On Knowing contents,

Respondents opted search by Custom Officer—On search of

baggage, Heroin was found concealed in bottom portion of

bag in cotton cloth belt—After fulfilling requirements of Act,

Respondents were charge sheeted for offences punishable

under Section 21, 23 & 28 of Act—On conclusion of trial,

they were acquitted after finding lacunas in prosecution case

and procedural safeguards contained in Section 50 of Act were

not adhered to—Appellant challenged acquittal in appeal—It

was urged on behalf of appellant that notice under Section

50 of Act was not required to be served upon Respondents

as recovery was effected from hand bag and not from his

person—Held:- Provisions of Section 50 of NDPS Act, are

mandatory and non compliance renders recovery of illicit article

suspect—Thus, non compliance of these provisions is viewed

seriously and adverse inference is drawn against prosecution,

particulary, when accused has denied that he has served any

such notice and it has created doubt with regard to truthfulness

of prosecution witnesses.


— Section 68(H) (I) Section 68 A(2) (d)—Section 68 B(g)—

Section 68 j—Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substance Act, 1988 (PITNDPS Act)—

Section 3(1) and 10(1)—Detention order dated 26.07.1989

issued aganist Mohd. Azad @ Avid Parvez, brother of the

petitioner—Detained w.e.f. 10.07.1991—Declaration u/s.

10(1) justifying detention beyond initial three months issued—

Detention order dated 26.07.1989—challenged before Calcutta

High Court—Unsuccessful—Special Leave Petition before the

Supreme Court dismissed—Challenge to order u/s.10(1)

successful—Detention beyond initial three months vitiated—

show cause notice u/s. 68 H (1) NDPS Act issued to the

petitioner—reply submitted—Daclaration issued and properties

forfeited to the Central Government vide order dated

16.10.1997—Appeal before the Appellant Authority—Dimissed

vide order dated 07.06.1999—Order challenged through the

present writ petition under Article 226—Plea that the

properties were acquired by his father for him not taken before

the Competent Authority nor before the Appellate Authority—

No document filed either before the Competent Authority nor

before the Appellate Authority —Held—Plea after thought—

Cannot be raised for the first time in the Writ petition—The

burden of proving that the property was not illegally acquired

on the person affected—The consistent findings do not call

(xxxiv)(xxxiii)

for any interfernce—Petition dimissed with costs.


PREVENTION OF CORRUPTION ACT, 1988—Section 19—















with costs.


SECURITIES AND EXCHANGE BOARD OF INDIA ACT,














(xxxvi)




































(xxxv)









of India ........................................................................... 527

— Sections 24 (1) and 27—Respondent filed a coomplaint before

Ld. CMM for the offence under Sections 24(1) and 27 of the

Act against M/s Master Green Forest Ltd—Allegations that

accused company was operating collective investment


contravention of Act and Regulations—There were allegations

against the promoters/Directions and the persons responsible

for the day to day affairs of the company, who actively

connived with each other in the commission of offence—Only

company was arrayed as an accused—Ld. ACMM vide its

order dated 15th December 2003 observed—Perusal of the

complaint discloses commission of offence punishable under

Section 24(1) and 27 of the Act and accordingly, all the

accused be summoned for 21 February 2004—Petitioners filed

the present petition seeking quashing of the proceedings

pending against them—Petitioners Contended—No specific

role is assigned to them in the complaint—Merely stating that

all the Directors and promoters connived with each other and

were in-charge and responsible for the day-to day functioning

of the company cannot fasten the vicarious liability on the

petitioners—Respondent contended that no case for quashing

is made out—Ingredients in the comlaint disclose commission

of cognizable offence—Held—Complaint clearly stated that the

promoters and Directors of the Company in-charge and

responsible for the conduct of its affairs have connived with

each other and have committed the offence—In the present

case the offence alleged is of running a collective investment

scheme contrary to the provisions of SEBI Act and

Regulations—No doubt Section 27 of SEBI Act makes

responsible all other Directors of the company who are

responsible and in-charge of the day-to day affairs of the

company, however in a case of conspiracy number of people

can be involved and this is the allegation of the Respondent

in the complaint. Thus, I find no merit in the contention that

even on the facts of the present case no case for proceeding

aganist the Petitioners are made out.


Board of India ............................................................... 527

(xxxviii)(xxxvii)

Indian Law Reports (Delhi) ILR (2012) I Delhi

A

B

C

D

E

F

G

H

I

A

B

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ILR (2012) I DELHI 453

W.P. (C)

RAJINDER RAI ....PETITIONER

VERSUS

MCD AND ORS. ....RESPONDENTS

(HIMA KOHLI, J.)

W.P. (C) NO. : 7407/2011 DATE OF DECISION: 10.10.2011

& C.M. NO. : 16794/2011

Constitution of India, 1950—Article 226—Delhi

Municipal Corporation Act, 1957—Section 345 A—

Premises bearing No. 147-B, Gujjar Dairy, Gautam Nagar,

New Delhi were registered under the National Capital



Respondent served notice upon the petitioner that

property is being used for commerical purpose in

violation of sanctioned use—Called upon to stop the

misuse otherwise it would be sealed—Petition

challenged the notice—Respondent contends—

Premises visited by Monitoring Committee appointed

by Supreme Court of India on 14.09.2011 and directed

MCD to seal the subject premises—Held—Any Action

on the part of respondent/MCD to seal subject

premises without the petitioner being afforded a

personal hearing, would amount to violation of

principles of natural justice, praticularly when the

settled law is that rules of natural justice must be read

into Section 345-A of the DMC Act—It is clear that

neither has the petitioner been heard on the issue of

misuse of premises, subject matter of the notice dated

18.09.2011 issued by the respondent/MCD under

Section 345-A of the DMC Act, nor has he been afforded

an opportunity to submit any representation, much

less be heard on the issue of ownership of land on

which the built-up structure stands, which was the

subject matter of the noting dated 03.10.20111, made

by a member of the monitoring Committee.

In the given facts and circumstances, it cannot be denied

that any action on the part of the respondent/MCD to seal

the subject premises without the petitioner being afforded a

personal hearing, would amount to violation of principles of

natural justice, particularly when the settled law is that rules

of natural justice must be read into Section 345-A of the

DMC Act, as observed in the case of Praveen Ahuja vs.

MCD & Ors. in W.P.(C) 2816/2011 decided on 05.07.2011

and Ahuja Property Developers (P) Ltd. Vs. MCD reported

as 42(1990)DLT 474 (DB), a decision which was followed in

the case of Shrimati Shamim Bano vs. MCD reported as

2007 VIII AD (Delhi) 304. (Para 10)

In the present case, it is clear that neither has the petitioner

been heard on the issue of misuse of premises, subject

matter of the notice dated 18.9.2011 issued by the

respondent/MCD under Section 345-A of the DMC Act, nor

has he been afforded an opportunity to submit any

representation, much less heard on the issue of ownership

of the land on which the built-up structure stands, subject

matter of the noting dated 3.10.2011, made by a member of

the Monitoring Committee. (Para 11)

Important Issue Involved: Rules of Natural Justice must

be complied for taking action under Section 345-A of DMC

Act, 1957.

[Vi Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. Ravinder Sethi, Sr Advocate

with Mr. Sumit Bansal and Mr.

Gaurav Sarin, Advocates.

Rajinder Rai v. MCD and Ors. (Hima Kohli, J.)


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FOR THE RESPONDENTS : Mr. Ajay Arora, Advocate with Mr.

Kapil Dutta, Advocate.

CASES REFERRED TO:

1. Praveen Ahuja vs. MCD & Ors. in W.P.(C) 2816/2011

decided on 05.07.2011.

2. Rajinder Rai vs. MCD & Ors. W.P.(C) 7126/2009.

3. Shrimati Shamim Bano vs. MCD reported as 2007 VIII

AD (Delhi) 304.

4. Ahuja Property Developers (P) Ltd. vs. MCD reported as

42(1990)DLT 474 (DB).

RESULT: The petition disposed of alongwith the pending application.

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner praying inter alia for

directions to the respondent/MCD not to take any coercive action in

respect of premises bearing No.147-B, Gujjar Dairy, Gautam Nagar,

New Delhi.

2. Learned Senior Advocate appearing for the petitioner states that

the aforesaid premises were purchased by the petitioner by virtue of a

sale deed dated 18.08.2008 (Annexure P-1). Prior to the purchase of the

property by the petitioner, it was being used for commercial purposes

and was sealed in the year 2007 in terms of the directions issued by the

Monitoring Committee appointed by the Supreme Court of India.

Subsequently, the predecessor-in-interest of the petitioner submitted an

undertaking that the subject premises would be used only for residential

purposes, on the basis of which, the premises was de-sealed on

11.09.2007 and was subsequently purchased by the petitioner in August

2008.

3. It is the contention of the petitioner that the said premises is

being used for residential purposes and that he has got the premises

registered under the National Capital Territory of Delhi (Incredible India)

Bed & Breakfast Establishment Registration and Regulation Act, 2007

(hereinafter referred to as ‘the Act’). He further states that out of the

built-up structure comprising of a basement, ground floor, first floor,

second floor and third floor, whereon 12 rooms have been constructed,

only five rooms have been registered under the Act. The said five rooms

include two rooms on the ground floor and three rooms on the first

floor. In support of the submission that five rooms are registered under

the aforesaid scheme, the attention of this Court is drawn to the Certificate

of Registration at page 45, which shows that the same is valid w.e.f.

12.10.2009 to 11.10.2012. It is further stated that the remaining rooms

are being used only for private residential purposes.

4. It is further submitted that recently, the petitioner was served

with a notice dated 18.09.2011 issued by the respondent/MCD under

Section 345-A of the Delhi Municipal Corporation Act, 1957 informing

him that it had been found that the entire property comprising of ground

floor, first floor, second floor and third floor was being put to use for

commercial purposes, in violation of the sanctioned use of the premises.

By virtue of the aforesaid notice, the petitioner was called upon to stop

the misuse and bring the premises within the permitted use, failing which

he was warned that the premises would be sealed.

5. Learned Senior Advocate appearing for the petitioner states that

immediately upon receipt of the aforesaid notice, the petitioner submitted

to the respondent/MCD, a reply dated 19.09.2011 (Annexure P-9),

followed by a reminder dated 30.09.2011 (Annexure P-10), but no response

whatsoever has been received from the respondent/MCD till date. Instead,

the petitioner has been threatened with the sealing action.

6. Counsel for the respondent/MCD, who appears on advance copy,

denies the aforesaid submissions made on behalf of the petitioner and

asserts that the subject premises was got inspected by the officers of the

respondent/MCD on 15.09.2011 and in the course of the said inspection,

it was found that the entire premises including the basement was being

illegally used to run a guest house for commercial purposes, which is

contrary even to the Registration Certificate issued by the Government

of National Capital Territory of Delhi under the Act. He further states that

recently, the Monitoring Committee appointed by the Supreme Court of

India inspected the subject premises on 14.9.2011 along with four other

premises situated in the same area, i.e., Gujjar Dairy, Gautam Nagar and

directed the officers of the respondent/MCD to seal the subject premises,

which was de-sealed after the undertaking given by the predecessor-in-

interest of the petitioner. He hands over the file of the Department

containing the noting dated 03.10.2010 signed by a member of the



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Monitoring Committee appointed by the Supreme Court, wherein directions

have been issued to the respondent/MCD to re-seal/seal the subject premises

as also four other premises in the same area on the ground that they have

been found to exist on government land, which has already been acquired.

7. At this stage, learned Senior Advocate states that the petitioner

is completely unaware of the orders passed by the Monitoring Committee

and the entire inspection and the ensuing proceedings have taken place

behind his back and that no opportunity has been afforded to the petitioner

to place his stand before the Monitoring Committee before such an

extreme order of sealing has been directed against the subject premises.

It is further asserted on behalf of the petitioner that the built-up structure

exists on land which is unacquired private land, which fact was confirmed

by the DDA in a writ petition preferred earlier by the petitioner, registered

as W.P.(C) 7126/2009 entitled Rajinder Rai vs. MCD & Ors. wherein

an order dated 22.11.2010 was passed recording DDA’s confirmation of

the said fact in para 9 thereof. Reliance is also placed on the order dated

28.02.2011 passed by the Deputy Commissioner, South Zone, wherein

the proceedings of W.P.(C) 7126/2009 have been taken note of. It is

stated that the petitioner must be afforded an opportunity to place all

these facts before the Committee for its consideration and having been

confronted with the aforesaid turn of events only in the course of the

present proceedings, counsel for the petitioner at least be permitted to

peruse the noting file of the respondent/MCD to enable the petitioner to

make a representation to the Monitoring Committee before implementation

of the sealing orders passed by the said Committee against the subject

premises.

8. What emerges from the above is that the reply dated 19.9.2011

filed by the petitioner to the notice to show cause issued by the respondent/

MCD under Section 345-A of the Delhi Municipal Corporation Act, 1957,

seeking a personal hearing, has admittedly yet to be decided upon by the

respondent/MCD, one way or the other. Furthermore, the inspection

conducted by the Monitoring Committee on 14.9.2011 was prior to the

issuance of the show cause notice on 18.09.2011 and as per the noting

dated 03.10.2011 made by a member of the Monitoring Committee, the

direction for re-sealing/sealing of the premises was issued to the

respondent/MCD as the premises of the petitioner was found to be on

land acquired by the Government, and not for any misuse found on the

premises, which is the ground taken in the show cause notice dated

18.9.2011. It is to be noted that even as regards the issue of ownership

of the subject land, the petitioner has admittedly not been heard either by

the respondent/MCD or by the Monitoring Committee and the order of

sealing passed by the Committee on the ground that the land underneath

the built-up structure is government land, has come to the knowledge of

the petitioner only in the course of the present proceedings.

9. It is settled law that before any coercive steps are initiated by

a civic authority or any other government authority against a party, such

party is entitled to make a representation and to be heard by the said

authority before a decision is taken in that regard.

10. In the given facts and circumstances, it cannot be denied that

any action on the part of the respondent/MCD to seal the subject premises

without the petitioner being afforded a personal hearing, would amount

to violation of principles of natural justice, particularly when the settled

law is that rules of natural justice must be read into Section 345-A of the

DMC Act, as observed in the case of Praveen Ahuja vs. MCD & Ors.

in W.P.(C) 2816/2011 decided on 05.07.2011 and Ahuja Property

Developers (P) Ltd. Vs. MCD reported as 42(1990)DLT 474 (DB), a

decision which was followed in the case of Shrimati Shamim Bano vs.

MCD reported as 2007 VIII AD (Delhi) 304.

11. In the present case, it is clear that neither has the petitioner

been heard on the issue of misuse of premises, subject matter of the

notice dated 18.9.2011 issued by the respondent/MCD under Section

345-A of the DMC Act, nor has he been afforded an opportunity to

submit any representation, much less heard on the issue of ownership of

the land on which the built-up structure stands, subject matter of the

noting dated 3.10.2011, made by a member of the Monitoring Committee.

12. In view of the aforesaid facts and circumstances, the present

petition is disposed of on the following lines: -

(i) The respondent/MCD shall give an opportunity for

inspection of the Departmental file containing the noting

dated 03.10.2011, by a member of the Monitoring

Committee, to the counsel for the petitioner today itself.

(ii) The petitioner shall be entitled to make a further

representation within one week, to the respondent/MCD

and place on record all the relevant facts with regard to



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the ownership of the subject premises, alongwith the

relevant documents/orders, if any, relied upon by him, in

the light of the observations made in the noting dated

03.10.2011.

(iii) The aforesaid representation shall be immediately processed

by the respondent/MCD and forwarded to the Monitoring

Committee for its consideration.

(iv) As counsel for the respondent/MCD states that now the

Monitoring Committee is seized of the matter with regard

to the re-sealing/sealing of the subject premises, it shall

also place before the said Committee the notice to show

cause dated 18.09.2011 issued by the respondent/MCD

under Section 345-A of the Act, along with the

representations dated 19.9.2011 and 30.9.2011 received

earlier from the petitioner with regard to the alleged misuse

of the premises, alongwith the subsequent representation

to be made by the petitioner within one week as regards

the ownership of the land on which the building is situated,

for appropriate orders to be passed by the Monitoring

Committee, after granting a hearing to the petitioner.

(v) The decision taken on the representation made by the

petitioner shall be duly intimated to him in writing.

13. It is directed that till the representation already submitted by the

petitioner (Annexure P-9) and the one to be submitted by the petitioner

within one week, as mentioned hereinabove, are considered after a hearing

is granted to the petitioner and an order is conveyed in writing to the

petitioner thereafter, the respondent/MCD shall not take any coercive

steps by way of sealing action against the subject premises. Needless to

state that the observations made hereinabove shall not influence decision

to be taken by the Monitoring Committee which shall proceed to deal

with the representation of the petitioner as per law.

The petition is disposed of alongwith the pending application.

DASTI to parties under the signatures of the Court Master.


FAO

AMI CHAND & ANR. ....APPELLANTS

VERSUS

JAI PRAKASH AND ORS. ....RESPONDENTS

(REVA KHETRAPAL, J.)

FAO NO. : 488/1999 DATE OF DECISION: 12.10.2011

Motor Vehicle Act, 1988—Section 96 (2)(b)(ii)—Driving

licence of offending driver was valid upto 23.01.1988

and he took the same from Court on 31.07.1989 for

renewal, but in the intervening period, the accident in

question occurred on 16.07.1988—Tribunal exonerated

the insurance company on the ground that at the time

of accident the offending driver did not hold a valid

driving licence—Appeal—Held, insurance company

connot be absolved of its liability to pay in the absence

of evidence on record to show that the offending

driver was disqualified from holding an effective

driving licence.

Tested on the aforesaid anvil, in my view, the Insurance

Company cannot be absolved of its liability in the absence

of cogent evidence on the record to show that the driver of

the vehicle was disqualified from holding an effective driving

licence, for, the insurance policy Ex.RW2/A clearly stipulates

that any person who is driving on the insured’s order or with

his permission would be included in the classes of persons

entitled to drive the vehicle in question provided that he

holds or had held and has not been disqualified from

holding an effective driving licence as per the Motor Vehicles

Act and the rules framed thereunder. In such circumstances,

to my mind, clearly in the present case, it cannot be said

that the insured had breached the conditions of the insurance



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policy as the person driving the vehicle had held a driving

licence and it has not been established on record that he

had been disqualified from holding an effective driving

licence. It is well established that the person who alleges

breach must prove the same. The Insurance Company was,

therefore, required to establish the breach of the policy by

cogent evidence. It has failed to prove that there has been

breach of the conditions of policy on the part of the insured,

and therefore, it cannot be absolved of its liability.

(Para 18)

Important Issue Involved: Insurance company connot be

absolved of its liability of pay in the absence of evidence on

record to show that the offending driver was disqualified

from holding an effective driving licence.

[Vi Gu]

APPEARANCES:

FOR THE APPELLANTS : Mr. O.P. Mannie, Advocate.

FOR THE RESPONDENTS : Mr. Salil Paul, Advocate for the

respondent No. 3.

CASES REFERRED TO:

1. R.K. Malik & Anr. vs. Kiran Pal & Ors., (2009) 14 SCC

1.

2. National Insurance Co. Ltd. vs. Swaran Singh and Ors.,

(2004) 3 SCC 297.

3. Lata Wadhwa and Ors. vs. State of Bihar and ors., (2001)

8 SCC 197.

4. M.S. Grewal and Anr. vs. Deep Chand Sood and Ors.,

(2001) 8 SCC 151.

5. Oriental Insurance Company vs. Mohammed Sab Ali Sab

Kaladagi & Ors., II (1999) ACC 70.

6. M/s. Srinivasa Roadways, Madurai vs. Saroja and Ors.,

1975 ACJ 265.

RESULT: Appeal allowed.

REVA KHETRAPAL, J.

1. This appeal is directed against the judgment of the Motor Accidents

Claims Tribunal, Karkardooma, Delhi dated 23.07.1999, whereby a sum

of Rs. 32,000/- was awarded in favour of the appellants and against the

respondents with interest at the rate of 9% per annum from the date of

the institution of the Claim Petition till realisation.

2. Concisely, the facts are that on 16.07.1988, at about 12.15 p.m,

the bicycle of one Shakti Kumar, aged 12 years, was hit by a truck

bearing No.DHL-5657, being driven rashly and negligently by the

respondent No.1, on account of which Shakti Kumar sustained injuries

to which he succumbed. The appellants are the father and mother of the

said Shakti Kumar (hereinafter referred to as “the deceased”), who filed

a Claim Petition under Sections 110A & 92A of the Motor Vehicles Act,

1939 claiming compensation in the sum of Rs. 3 lacs against the respondent

No.1-driver, the respondent No.2-owner and the respondent No.3-

Insurance Company. The learned Claims Tribunal, after conducting an

enquiry against the said respondents, held that the accident was the

outcome of the rash and negligent driving of the respondent No.1, against

whom FIR No.10/88 had also been registered under Sections 279/304A

IPC. On the aspect of quantum of compensation, after noting that the

deceased was a student of sixth standard at the time of the accident, the

Tribunal awarded damages for the death of the child in the sum of Rs.

30,000/- with funeral expenses of Rs. 2,000/-, in all, a sum of Rs.

32,000/- with interest thereon. It, however, exonerated the Insurance

Company from the payment of compensation on the ground that the

respondent No.1-driver, Jai Prakash held no driving licence at the time

of the accident.

3. Aggrieved by the aforesaid findings of the Claims Tribunal, the

present appeal has been preferred by the appellants assailing the award

of the Tribunal on the ground that the Tribunal awarded a very meagre

amount of compensation, in the sum of Rs. 32,000/- only, and on the

further ground that the Tribunal failed to appreciate that the respondent

No.1-driver of the offending vehicle was having a driving licence and

was not disqualified from holding a driving licence, and as such, all the

three respondents, namely, the driver, the owner and the insurer of the

Ami Chand & Anr. v. Jai Prakash and Ors. (Reva Khetrapal, J.)


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offending vehicle, ought to have been saddled with the liability to pay the

award amount to the appellants.

4. Mr. O.P. Mannie, the learned counsel for the appellants contended

that a paltry amount of compensation had been awarded to the appellants

which deserved to be enhanced on all counts. He submitted that the

Tribunal, after observing that the deceased was a child of 12 years, who

was studying in the sixth standard at the time of his unfortunate demise,

proceeded to award a lumpsum of Rs. 32,000/- to the claimants against

the claimed amount of Rs. 3 lacs, throwing to the winds the settled

principles of law for computing compensation payable to the legal

representatives of a deceased person. Mr. Mannie further contended that

it was incumbent upon the Tribunal to have determined the pecuniary and

non-pecuniary losses suffered by the appellants before awarding

compensation to the appellants. Instead, the Tribunal awarded a lumpsum

compensation without the application of any multiplier and without even

awarding nominal damages to the appellants on account of the loss of

estate and the loss of love and affection of the deceased.

5. In order to substantiate his contention, Mr. Mannie heavily relied

upon the judgment of the Supreme Court rendered in the case of R.K.

Malik & Anr. vs. Kiran Pal & Ors., (2009) 14 SCC 1. In the said

case, twenty-nine school-going children were drowned as a result of a

road accident caused by the overturning of the bus in which the said

children were proceeding to the school, which bus after overrunning the

road and breaking the railing got drowned in the Yamuna river at Wazirabad

Yamuna Bridge. The Tribunal, by its common judgment, awarded a sum

of Rs. 1,55,000/- to the dependents of the children between the age

group of 10 to 15 years and Rs. 1,65,000/- to the dependents of children

between 15 to 18 years. In the case of three children who were less than

10 years, the Tribunal awarded compensation of Rs. 1,05,000/-, Rs.

1,30,000/- and Rs. 1,31,000/- in their respective cases. Against the said

order of the Tribunal, appeals were filed before the High Court, which

were heard together by the High Court. The High Court by its common

order held that the appellants were entitled to enhancement of compensation

in all the cases by Rs. 75,000/- and Rs. 1,000/- (if not already awarded

by the Tribunal) and interest at the rate of 7.5% per annum from the date

of the filing of the petition till payment. Feeling aggrieved, a Special

Leave Petition was filed by the appellants, contending that the High Court

ought to have applied the ratio of Lata Wadhwa and Ors. vs. State of

Bihar and ors., (2001) 8 SCC 197 to the facts of the case and also that

it had failed to award a fair and reasonable compensation. The Supreme

Court, observing that compensation in cases of motor accidents, as in

other matters, is paid to the dependants of the deceased persons for

reparation of damages, and to put them in the pre-accidental position,

held that the damages so awarded should be an adequate sum of money

that would put the party, who has suffered, in the same position if he

had not suffered on account of the wrong committed. Compensation is,

therefore, required to be paid for prospective pecuniary loss. On the

aspect of computation of compensation, after noticing that the Act provided

for payment of ‘just compensation’ vide Sections 166 and 168 of the

Motor Vehicles Act, 1988, the Court observed that it had repeatedly been

held that it is the multiplier method which should be applied as the said

method is based upon the principle that the claimant must be paid a

capital sum, which would yield interest to provide material benefits of the

same standard and duration as the deceased would have provided for the

dependents, if the deceased had lived and earned. The Court further

observed that uniform application of the multiplier method ensures

consistency and certainty and prevents different amounts being awarded

in different cases.

6. Applying the ratio of the aforesaid judgment to the present case,

I have not the least bit of hesitation in holding that the learned Tribunal

did not award ‘just compensation’ for the pecuniary losses suffered by

the appellants as the Tribunal threw to the winds the application of the

multiplier method, which, as noticed above, the Supreme Court has

unequivocally laid down, should be uniformly applied for the purpose of

ascertaining the quantum of ‘just compensation’ in all cases of motor

accidents. The learned Tribunal also failed to award ‘just compensation’

for the non-pecuniary losses sustained by the appellants, which, in my

opinion, it was bound to do. It is, therefore, proposed to re-compute the

compensation in accordance with the settled principles of law as enunciated

by the Supreme Court from time to time and it is upon this exercise that

I now embark.

7. Assuming the notional income of the deceased child to be in the

sum of Rs. 15,000/- per annum in terms of Schedule II, and applying

the multiplier of 15 specified in the Second Column of the table in



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Schedule II to the Act, the pecuniary damages payable to the appellants

are computed to be in the sum of Rs. 2,25,000/-. It is a well settled legal

principle that in addition to awarding compensation for pecuniary loss,

compensation must also be granted for the future prospects of the children.

In the case of Lata Wadhwa (supra) and M.S. Grewal and Anr. vs.

Deep Chand Sood and Ors., (2001) 8 SCC 151, the Supreme Court

recognised that denying compensation towards future prospects would

be unjust, and deemed it appropriate to grant Rs. 75,000/- as compensation

for the future prospects of the children to be paid to each claimant over

and above the awarded amount. Such award of future prospects was

also approved of in the case of R.K. Malik (supra). Accordingly, it is

deemed just and fair to award a sum of Rs. 75,000/- towards the future

prospects of the deceased child, who was admittedly a student in pursuit

of education for his advancement in life.

8. So far as the non-pecuniary damages are concerned, as noticed

above, the Tribunal has not awarded any compensation for the non-

pecuniary damages sustained by the claimants. Accordingly, a sum of

Rs. 75,000/- is awarded towards non-pecuniary damages, including loss

of expectation of life, loss of estate of the deceased and loss of love and

affection of the deceased. The total compensation awarded thus comes

to Rs. 3,75,000/- (Rupees Three Lac Seventy Five Thousand Only). The

learned Tribunal awarded interest at the rate of 9% per annum from the

date of the institution of the petition till the date of realisation on the

compensation awarded by it. In view of the fact that the award amount

has been enhanced considerably by this Court, the appellants are held

entitled to interest on the enhanced award amount at 7.5% per annum for

the aforesaid period. On the original award amount of Rs. 32,000/-,

interest at the rate of 9% per annum as awarded by the Tribunal is held

to be payable.

9. The next question which arises for consideration in the present

appeal is the question as to the respective liability of the respondents to

pay the award amount. Mr. Mannie strongly contended on behalf of the

appellants that even assuming that the respondent No.1-driver was not

holding a valid and effective driving licence on the date of the accident,

the Insurance Company cannot be exonerated from its liability to make

payment of the award amount in the first instance. The argument of Mr.

Mannie is that in the present case the driver was not disqualified from

holding a driving licence, and as such, there was no breach of the policy

conditions. Reference was made by Mr. Mannie in this regard to the

relevant portion of the insurance policy (Exhibit RW2/A) captioned “Persons

or Classes of Persons entitled to drive”, which reads as follows:

“Persons or Classes of Persons entitled to drive

Any of the following:

(a) The Insured

(b) Any other person who is driving on the Insured’s order

or with his permission.

Provided that the person driving holds or had held and has

not been disqualified from holding an effective driving

licence with all the required endorsements thereon as per

the Motor Vehicles Act and the Rules made thereunder

for the time being in force to drive the category of Motor

Vehicle insured hereunder.”

10. On the basis of the aforesaid section contained in the insurance

policy, Mr. Mannie contended that the Insurance Company could not be

exonerated from its liability to pay compensation unless and until it proved

that the driver was not only not duly licenced, but also disqualified from

holding an effective driving licence.

11. In order to substantiate his aforesaid contention, Mr. Mannie

relied upon the provisions of 96(2)(b)(ii), which read as under:

“(ii) a condition excluding driving by a named person or persons

or by any person who is not duly licensed, or by any person

who has been disqualified for holding or obtaining a driving

licence during the period of disqualification;”

12. He contended that according to the construction of this section,

the Insurance Company can succeed for establishing its defence if the

person was not duly licensed or he was disqualified from holding or

obtaining the driving licence during the period of disqualification. In other

words, either of the conditions has to be duly fulfilled. But in the policy

issued in the present case (Ex.RW2/A), the word ‘and’ is used as

conjunction instead of the word ‘or’ used in the Statute. By the use of

the word ‘and’, it stands established that the Insurance Company has to



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prove that the driver was not only not duly licensed, but was also

disqualified for holding a licence. In this context, Mr. Mannie relied upon

a Division Bench judgment of the Madras High Court in the case of M/

s. Srinivasa Roadways, Madurai vs. Saroja and Ors., 1975 ACJ 265,

wherein the Division Bench, after referring to the provisions of sub-

clause (ii) of Clause (b) of Section 96(2) pertaining to breach of the

policy conditions and the relevant portion of the insurance policy pertaining

to the limitations as to the use of the vehicle in the said case, made the

following apposite observations:

“............................. the three sub-clauses in Section 96 (2) (b)

(ii) indicate the amptitude of permissible exclusion. As the sub-

clauses are disjunctive, an option is given to the Insurance

Company to exclude at its discretion driving either by a named

person or by a Person who is not duly licensed or by a person

who has been disqualified for holding or obtaining a driving

licence or to exclude driving by all these three classes of persons.

In other words, it is open to the Insurance Company to refuse

to cover a risk brought about by a person like R.-1 in this case,

who at the time of the accident, had held a licence, but had no

effective licence covering the period of the accident. But,

unfortunately, the Insurance Company, has in this case exercised

its option even to include a person who had held a licence prior

to the date of the accident (that is to say, a licence that had

expired prior to the date of the accident) and yet was not

disqualified for holding or obtaining such a licence at the time of

the accident. The Insurance policy issued by the Motor Owners

Insurance Co. Ltd.. in this case has been marked as Ex. B 8. In

the schedule to this policy, the limitations as to use of the bus

have been defined, and it is stipulated that,

“the vehicle may be driven either by the Insured or any

other person provided he is in the insured’s employ and

is driving on his order or with his permission; provided

that the person driving holds a licence to drive the motor

vehicle or has held and is not disqualified for holding or

obtaining such a licence.”

What is the construction to be placed on the words ‘the person

driving holds a licence to drive the motor vehicle or has held and

is not disqualified for holding or obtaining such a licence?’ This

clause clearly contemplates a person who did not hold a valid

licence on the date of the accident, but who had held a licence

previously and who had not, at the time of accident, been

disqualified for holding or obtaining such a licence. The Insurance

Company, with its great business experience, must have thought

it right to cover an accident caused by a person who has had

considerable driving experience, and yet due to inadvertence or

absentmindedness, has not chosen to renew that licence during

the period allowed by law and has been involved in an accident

while he had not yet obtained a renewal of the licence.”

13. On the strength of the aforesaid judgment, it was contended

that if all the conditions laid down in the section are not reproduced in

the policy and the policy positively undertakes to cover liability in respect

of an accident caused by a person who though not having an effective

licence at the time of the accident, has not been disqualified to hold a

licence, the Company cannot escape liability. It was further contended

that there cannot be a compromise between the word ‘or’ and the word

‘and’. Reliance in this regard was also placed on the judgment of the

Karnataka High Court in the case of Oriental Insurance Company vs.

Mohammed Sab Ali Sab Kaladagi & Ors., II (1999) ACC 70. In the

said case, the clause in the insurance policy issued by the appellant was

akin to the clause in the insurance policy in the present case. Referring

to the provisions of Section 149(2)(a)(ii), the Court made the following

observations:

“5. The wording used as ‘or’ assumes much importance in this

case. According to the construction of this section, the Insurance

Company can succeed only if the person was not duly licensed

or he was disqualified from holding or obtaining the driving

licence during the period of disqualification. According to the

construction of the language either of the conditions has to be

duly fulfilled. But in the policy issued the word ‘and’ is used as

conjunction. By the use of word ‘and’ it goes to show that the

Insurance Company has to prove that the driver was not only

not duly licensed but also was also disqualified for holding the

licence. The word ‘or’ and the word ‘and’ used in the policy

assumes much importance. There cannot be compromise between



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469 470

the word ‘or’ and ‘and’. The plain language as it is read has to

be understood. In this direction, Mr. B.S. Patil, learned Counsel

for the respondents relied upon the observation as how the

construction of the statute be understood. On page 96 of the

Interpretation of Statutes by Maxwell it is stated as follows:-

“To suppress the mischief and advance the remedy.

It is said to be the duty of the Judge to make such

construction of a statute as shall suppress the mischief

and advance the remedy.”

6. The another golden rule (sic.) that is to be remembered is that

the statute is capable of being interpreted in two ways. In the

case on hand the claimants shall become the victims in the event

the Insurance Company is exonerated. The very purpose of issuing

the policy is to protect the third party risk. If the Insurance

Company is allowed to go scot free on this ground, great hardship

would be caused to the claimants. Hence in view of the impending

danger that is likely to arise in the case of claimants, the beneficial

interpretation has to come to the rescue of the claimants. It is

of-quoted that the duty is to provide the light and not to generate

heat. Unless the Insurance Company can place any of the materials

covered by Sections 19, 20, 132, 134 and 185, it can never be

said that there was any disqualification to hold the licence. It

goes without saying that when the specific contention of

disqualification is taken by the Insurance Company, the burden

is also on the Insurance Company to adduce the evidence that

the driver was not duly licensed and was disqualified. No material

evidence is adduced in this direction.”

14. Mr. Salil Paul, the learned counsel for the respondent No.3, on

the other hand, sought to rebut the aforesaid contentions of Mr.Mannie

and to support the award of the Tribunal by relying upon the provisions

of Chapter II of the Motor Vehicles Act, 1939, and, in particular, the

provisions relating to the necessity for possessing a driving licence as

incorporated in Section 3, and those relating to renewal of driving licences

as contained in Section 11 of the said Act. For the sake of convenience,

the said sections, insofar as the same are relevant for the present purposes,

are reproduced hereunder:

Section 3

“Necessity for driving licence.– (1) No person shall drive a

motor vehicle in any public place unless he holds an effective

driving licence issued to him authorising him to drive the vehicle;

and no person shall so drive a motor vehicle as a paid employee

or shall so drive a transport vehicle unless his driving licence

specifically entitles him so to do. (2) A State Government may

prescribes the conditions subject to which sub-section (1) shall

not apply to a person receiving instructions in driving a motor

vehicle. (3) Notwithstanding anything contained in sub-section

(1), a person who holds an effective driving licence authorizing

him to drive a motor car may drive any motor cab hired by him

for his own use.”

Section 11 “11. Renewal of driving licences.– (1) Any licensing

authority may, on application made to it, renew a licence issued

under the provisions of this Act with effect from the date of its

expiry:

Provided that in any case where the application for the renewal

of a licence is made more than thirty days after the date of its

expiry, the driving licence shall be renewed with effect from the

date of its renewal:

Provided further that where the application is for the renewal

of a licence to drive as a paid employee or to drive a transport

vehicle or where in any other case the original licence was

issued on production of medical certificate, the same shall be

accompanied by a fresh medical certificate in Form C as set

forth in the First Schedule, signed by a registered medical

practitioner, and the provisions of sub-section (5) of section 7

shall apply to every such case.

(2) ................................

(3) ................................

(4) ................................

(5) ................................”



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471 472 Ami Chand & Anr. v. Jai Prakash and Ors. (Reva Khetrapal, J.)

(c) driver is a, person disqualified for holding or obtaining a

driving licence.”

17. The Court further observed that the Insurance Company with

a view to avoid its liabilities is not only required to show that the conditions

laid down under Section 149(2)(a) or (b) are satisfied, it is further

required to establish that there has been a breach on the part of the

insured. It was also observed that a contract of insurance also falls

within the realm of contract, thus, like any other contract, the intention

of the parties must be gathered from the expressions used therein. The

insurer’s liability, however, arises both from contract as well as statute.

18. Tested on the aforesaid anvil, in my view, the Insurance

Company cannot be absolved of its liability in the absence of cogent

evidence on the record to show that the driver of the vehicle was

disqualified from holding an effective driving licence, for, the insurance

policy Ex.RW2/A clearly stipulates that any person who is driving on the

insured’s order or with his permission would be included in the classes

of persons entitled to drive the vehicle in question provided that he holds

or had held and has not been disqualified from holding an effective

driving licence as per the Motor Vehicles Act and the rules framed

thereunder. In such circumstances, to my mind, clearly in the present

case, it cannot be said that the insured had breached the conditions of

the insurance policy as the person driving the vehicle had held a driving

licence and it has not been established on record that he had been

disqualified from holding an effective driving licence. It is well established

that the person who alleges breach must prove the same. The Insurance

Company was, therefore, required to establish the breach of the policy

by cogent evidence. It has failed to prove that there has been breach of

the conditions of policy on the part of the insured, and therefore, it

cannot be absolved of its liability.

19. In view of the legal position enunciated above, it is held that the

Insurance Company shall pay the amount of compensation as adjudged

in paragraph 8 hereinabove to the appellants by depositing the same with

the Registrar General of this Court within 30 days of the date of the

passing of this order, which shall be released to the appellants in equal

proportion.

15. Mr. Salil Paul contended that the learned Tribunal, on the basis

of the evidence adduced, had rightly come to the conclusion that the

licence of the respondent No.1-driver was valid only upto 23.01.1988,

and that he had taken the licence back from the Court on 31.07.1989 for

the purpose of getting the same renewed. Thus, for the entire period

intervening 24.01.1988 to 31.07.1989, the respondent No.1 was not

holding a valid and effective driving licence. The accident in question

admittedly took place on 16.07.1988, on which date the respondent No.1

was not holding a valid driving licence. Mr. Paul further contended that

the respondent No.1 had also been challaned by the Police under Section

3/112 of the Motor Vehicles Act, 1939, for not possessing a valid driving

licence, and this fact had been taken into account by the learned Tribunal

for arriving at the finding that on the date of the accident, the offending

vehicle was being driven by its driver without any valid driving licence.

16. Having considered the rival submissions of the parties, in my

opinion, though the facts in the present case conclusively establish that

on the date of the accident the respondent No.1-driver was driving the

offending vehicle without any valid driving licence, and the learned Tribunal

has rightly held that the offending truck was being driven by a person

who was not holding a valid driving licence, the Insurance Company

cannot be exonerated from making payment of the award amount in the

first instance. The question as to whether an Insurance Company can

avoid its liability in the event it raises a defence as envisaged in sub-

section (2) of Section 149 of the Act, corresponding to sub-section (2)

of Section 96 of the Motor Vehicles Act, 1939, was the subject matter

of consideration by a three-Judge Bench of the Supreme Court in the

case of National Insurance Co. Ltd. vs. Swaran Singh and Ors.,

(2004) 3 SCC 297, wherein a large number of decisions were taken note

of and considered, and thereafter the Court arrived at the following

conclusion: (SCC, Pg. 323, 324)

“Clause (a) opens with the words “that there has been a breach

of a specified condition of the policy”, implying that the insurer’s

defence of the action would depend upon the terms of the policy.

The said sub-clause contains three conditions of disjunctive

character, namely, the insurer can get away from the liability

when (a) a named person drives the vehicle; (b) it was being

driven by a person who did not have a duly granted licence; and


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473 474Santosh Kumar Jha v. UOI & Ors. (Rajiv Sahai Endlaw, J.)

20. The appeal stands disposed of accordingly. There shall be no

order as to costs.

21. Records of the Tribunal be sent back to the concerned Tribunal.


W.P. (C)

SANTOSH KUMAR JHA ....PETITIONER

VERSUS

UOI & ORS. ....RESPONDENTS

(RAJIV SAHAI ENDLAW, J.)


Constitution of India, 1950—Writ—Prevention of

Corruption Act, 1988—Section 19—Sanction for

prosecution accorded for offence committed in


before Special Judge, Mumbai—Territorial jurisdiction—

Copy of formal order of sanction not made available—

Earlier, on more that one occasion sanction to

prosecute not granted—Grant of sanction challenged

as arbitrary and malafide and amounts to review of

earlier decisions—Held—Court at Delhi does not have

territorial jurisdiction to entertain the petition—

Challenge could be made before the Special Judge—

Sanction order contains detailed for according the

sanction—The sanction could not have issued by

anyone below the Minister, the matter never gone in

the past to the Minister—Case does not fall in the

category of extreme and rare nor there is any ex-facie

illegality in the sanction accorded—Petition dismissed

with costs.

Sub-Sections (3) & (4) of Section 19 are thus indicative of

objections regarding and/or challenge if any to the sanction,

being maintainable before the Special Judge only and/or in

any appeal and/or other proceedings in the nature of

revision etc. arising from the proceedings before the Special

Judge. (Para 11)

The petitioner herein has neither shown any reason for this

case to fall in the category of “extreme and rare” nor has

shown any ex facie illegality in the sanction accorded.

Rather the counsel for the petitioner has argued by taking

this Court through the laborious exercise of scrutinizing the

material. Thus, no case for entertaining under Article 226 is

made out. (Para 15)

All the aforesaid questions require detailed examination of

documents and records. The same as noticed above is

beyond the scope of writ jurisdiction. Suffice it is to state that

an Expert Committee had been constituted before sanction

was accorded. The benefit of the report of the said Expert

Committee was not available when according to the petitioner

the sanction was refused. The present is not thus a clear

cut case where it can be said that no new material was

available before the sanctioning authority. The counsel for

the respondent No.3 CBI has referred to Dinesh Kumar Vs.

Chairman, Airport Authority of India 2011 (2) JCC 733

where this Court held that the question whether or not

sanctioning authority applied its mind to the facts and the

material collected is a mixed question of law and facts which

requires evidence for determination and if at all the petitioner

has any grievance against the validity of the sanction order,

he obviously would get a chance to challenge its validity

before the concerned Court where the charge sheet is filed.

The aforesaid equally applies to the ground of challenge in

the present case also. The question whether any ground for

review existed or not would require going into a plethora of

documents and records available before the sanctioning


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authority on both the occasions. The said question is thus

a mixed question of law and fact which cannot be adjudicated

at this stage. (Para 28)

Important Issue Involved: (A) Sub section (3) and (4) of

section 19 are indicative of objections regarding to challenge,

if any to the sanction being maintainable before the Special

Judge only and/or in any appeal and or other proceedings

in the nature of revision etc. arising from the proceedings

before the Special Judge.

(B) The Import of Section 19(3) (c) prohibiting any court,

though may not cover the High Court exercising powers

under Article 226, from staying the proceedings the Act on

any other ground is to ensure expeditious decision.

(C) Where the case dose not fall in the category of ‘extreme

and rare’ and there is no ex-facie illegality in sanction

accorded, laborious exercise of scrutinizing and detailed

examination of documents and record is beyond the scope

of writ jurisdiction.

(D) Therer is no bar to review the order and the only test

is whether there was any ground for review or not. And

whether any ground existed or not, require going into available

documents and records before the sanctioning authority, is

a mixed question of law and fact.

[Vi Gu]

APPEARANCES:

FOR THE PETITIONER : Mr. C.B. Pandey, Advocate and

Ranjan Pandey, Advocate.

FOR THE RESPONDENTS : Mr. R.V. Sinha with Mr. R.N. Singh

and Ms. Sangita Rai, Advocates for

the respondent nos.1 and 2 Ms. Sonia

Mathur and Mr. Sushil Kumar Dubey

Advocates for Respondent no.3.

CASES REFERRED TO:

1. Dinesh Kumar vs. Chairman, Airport Authority of India

2011 (2) JCC 733.

2. Chittaranjan Das vs. State of Orissa (2011) 7 SCC 167.

3. UOI vs. Vartak Labour Union JT 2011 (3) SC 110.

4. Sterling Agro Industries Ltd. vs. Union of India 181 (2011)

DLT 658.

5. State of Himachal Pradesh vs. Nishant Sareen AIR 2011

SC 404.

6. Jasbir Singh Chhabra vs. State of Punjab (2010) 4 SCC

192.

7. Sethi Auto Service Station vs. DDA (2009) 1 SCC 180.

8. State of Punjab vs. Mohammed Iqbal Bhatti (2009) 17

SCC 92.

9. State of Madhya Pradesh vs. Jiyalal (2009) 15 SCC 72.

10. Bholu Ram vs. State of Punjab 2008 (12) SCALE 133.

11. Mosaraf Hossain Khan vs. Bhagheeratha Engg. Ltd.

(2006) 3 SCC 658.

12. Hari Dutt Sharma vs. Union of India 125 (2005) DLT

17.

13. Abha Tyagi vs. Delhi Energy Development Agency 2002

III AD (Delhi) 641.

14. C.B.I. Anti-Corruption Branch, Mumbai vs. Narayan

Diwakar (1999) 4 SCC 656.

15. Dhirendra Krishan vs. BHEL ILR (1999) I Delhi 538.

16. Durgaprasad P. Dash vs. State Bank of Saurashtra MANU/

GJ/0343/1996.

17. State of M.P. vs. Dr. Krishna Chandra Saksena (1996)

11 SCC 439.


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Santosh Kumar Jha v. UOI & Ors. (Rajiv Sahai Endlaw, J.)

18. Dr. J. Jayalalitha vs. Dr. M. Channa Reddy, Governor of

Tamil Nadu (1995) II MLJ 187.

19. State of West Bengal vs. Mohd. Khalid (1995) 1 SCC

684.

20. State of Bihar vs. P.P. Sharma AIR 1991 SC 1260.

21. Mohd. Iqbal Ahmed vs. State of Andhra Pradesh AIR

1979 SC 677.

22. Parmanand Dass vs. State of Andhra Pradesh (1978) 4

SCC 32.

RESULT: Petition dismissed.

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the sanction accorded, in exercise of

powers under Section 19 of the Prevention of Corruption Act, 1988

(POCA), by the Minister for Railways on 14.02.2011 for the prosecution

of the petitioner. The writ petition came up before this Court first on

06.05.2011 when on oral request of the petitioner, the Central Vigilance

Commission (CVC) and the Central Bureau of Investigation (CBI) were

impleaded as respondents. It was the contention of the petitioner on that

date, that the petitioner till then had not been able to get a copy of the

formal order granting sanction for his prosecution; that the previous

history of the case showed that on more than one occasion, the matter

was examined and it had been decided not to grant sanction to prosecute

the petitioner; that the said decision was reversed under pressure from

the respondent No.3 CBI. The petitioner accordingly sought interim order

restraining further steps pursuant to the sanction accorded on 14.02.2011.

2. Notice of the petition was issued and the question of interim

relief left to be considered on the next date of hearing. On 10.05.2011,

it was directed that in the event the respondent No.3 CBI proposed to

file a charge sheet, it will first inform this Court. Thereafter on 03.06.2011,

the counsel for the petitioner informed that notwithstanding the earlier

order of this Court, the petitioner had been summoned by the Special

Judge of CBI Court in Greater Mumbai; violation of order dated 10th

May, 2011 of this Court is alleged. Vide subsequent interim orders dated

15.06.2011 and 05.07.2011, the Special Judge, CBI, Greater Mumbai

was requested not to insist on the personal presence of the petitioner

before that Court. Counter affidavit has been filed by the respondent

No.3 CBI and to which rejoinder has been filed by the petitioner. The

counsels for the parties have been heard. The counsel for the respondent

No.3 CBI during the course of hearing has handed over their records as

to the grant of sanction for prosecution of the petitioner. The petitioner

after the conclusion of the hearing has filed an additional affidavit dated

02.09.2011 enclosing therewith the formal sanction order dated 26.04.2011

for the prosecution of the petitioner.

3. The petitioner has pleaded:

(a) that he was appointed as an Indian Railway Traffic Service

(IRTS) Cadre Officer in the Railways Department on the

basis of direct recruitment through Civil Services

Examinations (1992) and is presently working as Deputy

Chief O’perations Manager (Planning), Western Railway,

Mumbai;

(b) that he, in the years 2001 and 2004, had purchased

immovable properties at Greater Noida and Lucknow

respectively, after availing of bank loan and loans from

relatives and duly intimated about the purchase of aforesaid

properties to the department, in accordance with Rules;

(c) that a Departmental Vigilance Enquiry was instituted against

him and the case was also given to the respondent No.3

CBI and an FIR was lodged by the respondent No.3 CBI

against the petitioner of offence punishable under Section

13(2) read with Section 13(1)(d) of POCA and registered

for investigation;

(d) that the respondent No.3 CBI arrived at a conclusion of

the petitioner possessing assets disproportionate by 54%;

(e) that the respondent No.2 Member Traffic, Railway Board

forwarded the aforesaid report of respondent No.3 CBI to

General Manager, Western Railway who held that the

petitioner was not found in possession of any undeclared

property and the case was of violation of the Railway

Services (Conduct) Rules, 1966 regarding taking prior

permission before acceptance of a gift cheque and

accordingly recommended to the respondent No.2 Railway

477 478


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Board only departmental enquiry and no prosecution against

the petitioner;

(f) that the competent Disciplinary Authority on 21.02.2008

took a decision for initiation of only major penalty

proceedings against the petitioner and did not recommend

prosecution of the petitioner;

(g) the respondent No.4 CVC in its note dated 14.05.2008

recorded that the respondent No.3 CBI takes up cases

involving more than 30% of the assets as fit for

prosecution; that in the present case as per calculation of

the Railways, the percentage of disproportionate assets is

only 20.65%; that the respondent No.4 CVC’s own

calculation of disproportionate assets was of 34.7% while

that of respondent No.3 CBI, as aforesaid, was of 54%.

In the circumstances, the matter was referred back to the

respondent No.3 CBI to consider the views of the

respondent No.2 Railway Board;

(h) the petition does not disclose the findings of the respondent

No.3 CBI at this stage; however it is pleaded that on the

matter being referred again to respondent No.4 CVC and

thereafter again to the respondent No.2 Railway Board,

the respondent No.2 Railway Board again on 06.01.2009

opined that the case did not warrant prosecution by the

respondent No.3 CBI;

(i) however the respondent No.3 CBI again approached the

respondent No.4 CVC and a joint meeting of respondent

No.3 CBI, respondent No.4 CVC and the respondent No.2

Railway Board was held on 11.09.2009 in which it was

found that respondent No.3 CBI can be said to have

brought out a clear “disproportion” of 15.73% which can

go upto 24.42% only if there is a strong evidence to reject

the income of the wife of the petitioner and the loan;

(j) that under the influence of respondent No.3 CBI, a

Committee of Experts was constituted and on the basis of

report whereof respondent No.4 CVC advised prosecution

of the petitioner and the Disciplinary Authority of the

petitioner changed its earlier view and recommended

sanction of prosecution of the petitioner.

4. The petitioner contends that the Disciplinary Authority having

initially applied its mind and not sanctioned prosecution, has now, in

sanctioning the prosecution acted mechanically at the behest of respondent

No.3 CBI. It is contended that the earlier decision of not recommending

prosecution had attained finality and could not have been reviewed in the

absence of any fresh material coming on record. Reliance in this regard

is placed on Abha Tyagi v. Delhi Energy Development Agency 2002

III AD (Delhi) 641 and the judgment dated 23rd July, 2004 of the

Division Bench of this Court in LPA No. 542/2002 arising therefrom. For

the same reasons the order of sanction is also averred to be arbitrary and

mala fide. Various other errors in the computation of percentage of

disproportionate assets of the petitioner are averred. It is also contended

that the constitution of an Expert Committee was illegal. It is alleged that

while in the FIR the check period was from 1993 to 2005, it has been

reduced while computing the percentage of disproportionate assets to six

years (1999 to 2005) only causing great prejudice to the petitioner. It is

further contended that the representations of the petitioner from time to

time have not been considered. With reference to Mohd. Iqbal Ahmed

Vs. State of Andhra Pradesh AIR 1979 SC 677, it is contended that

grant of prosecution sanction is a sacrosanct exercise and not a mere idle

formality and thus the grant of sanction by the respondent No.2 Railway

Board on the basis of the orders of respondent No.4 CVC is illegal; that

the sanctioning authority has not applied its own mind.

5. The respondent No.3 CBI qua the argument of the petitioner of

the violation of the interim order dated 10.05.2011 of this Court directing

the respondent No.3 CBI to, if proposing to file the charge sheet to first

inform this Court, has explained that the charge sheet in fact had been

filed prior thereto on 05.05.2011 and thus there is no violation of the

interim order of this Court. It is further pleaded that intimation thereof

was given to the petitioner on 05.05.2011 itself and the petitioner was

asked to remain present on 11.05.2011 but the petitioner stated that he

will be on leave at Delhi till 15.05.2011; that the Special Judge, CBI,

Greater Mumbai took cognizance on 11.05.2011.

6. The respondent No.3 CBI in its counter affidavit as also on each

and every date of hearing, has been vehemently opposing the territorial


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jurisdiction of this Court to entertain this petition. It is pleaded that the

alleged offence has been committed at Mumbai, the FIR has been

registered at Mumbai and the charge sheet has also been filed before the

Special Judge, CBI, Greater Mumbai; the petitioner is also posted at

Mumbai and the Special Judge, CBI, Greater Mumbai has already taken

cognizance of the matter and the impugned sanction order is a part of

the charge sheet and is under the judicial scrutiny of the learned Special

Judge. It has further been contended on each and every date that the

Special Judge, CBI, Greater Mumbai being beyond the territorial jurisdiction

of this Court, no order with respect to proceedings of that Court could

be made by this Court. Reliance is placed on C.B.I. Anti-Corruption

Branch, Mumbai Vs. Narayan Diwakar (1999) 4 SCC 656 and on

Mosaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. (2006) 3 SCC

658. It is contended that it would be more appropriate to challenge the

order taking cognizance in the Criminal Court having jurisdiction and the

issue of validity of sanction should be gone into by that Court only.

Reference is also made to Bholu Ram Vs. State of Punjab 2008 (12)

SCALE 133. It is also the argument of the respondent No.3 CBI that

efficacious alternative remedy being available as aforesaid, the discretionary

writ remedy ought to be declined to the petitioner.

7. It is further the plea of the respondent No.3 CBI that the present

proceedings are dilatory; that the order of sanction of prosecution has

been issued in the name of the President as per the Government of India

(Allocation of Business) Rules, 1961 and the same was authenticated as

per Government of India Authentication (Orders and Other Instruments)

Rules, 2002 and under Article 77 of the Constitution of India, the same

is not to be called into question.

8. It is also pleaded by the respondent No.3 CBI on merits that at

the time of first advice of respondent No.4 CVC, certain material facts

were not taken into consideration by the respondent No.4 CVC and

hence the facts which were not considered at the time of first advice

were further highlighted and represented by respondent No.3 CBI for re-

consideration of respondent No.4 CVC and upon consideration thereof

on report of the Expert Committee, the respondent No.4 CVC reconsidered

the matter and gave the reconsidered advice for issuance of sanction

order for prosecution of the petitioner.

9. The petitioner in his rejoinder to the counter affidavit has justified

the territorial jurisdiction of this Court by pleading that the offices of the

respondents are within the jurisdiction of this Court, the sanction order

dated 26.04.2011 for prosecution has been issued by the Ministry of

Railways from New Delhi; all the information for approval of sanction

for prosecution has been gathered by the petitioner through the medium

of Right to Information Act, 2005 in New Delhi only. The petitioner

further avers that the petitioner till now having not been served with any

summons pertaining to prosecution, has no other avenue to challenge the

sanction for prosecution except by way of this writ petition. He denies

having been informed of the filing of the charge sheet and states that the

present petition was filed even prior to the charge sheet being filed in the

Court of the Special Judge, CBI, Greater Mumbai. It is reiterated that the

filing of the charge sheet is in violation of the orders of this Court. Else,

the pleas in the counter affidavit regarding grant of sanction are

controverted.

10. Section 19 of POCA prohibits any Court from taking cognizance

of an offence punishable thereunder except with the previous sanction of

the Central Government or the State Government as the case may be and

in the case of any other person, of the authority competent to remove

him from his office. A first reading thereof appears to indicate that the

challenge if any to the sanction, cannot be before the Court taking

cognizance of the offence inasmuch as without a valid sanction, that

Court would have no jurisdiction. However, Section 19 itself in sub-

section (3) thereof provides that no finding, sentence or order passed by

a Special Judge shall be reversed or altered by a Court in appeal,

confirmation or revision on the ground of the absence of, or any error,

omission, irregularity in the sanction required under sub-section (1),

unless in the opinion of that Court, a failure of justice has in fact been

occasioned thereby. It further provides that no Court shall stay the

proceedings under the Act on the ground of any error, omission or

irregularity in the sanction granted by the authority, unless it is satisfied

that such error, omission or irregularity has resulted in a failure of

justice. Sub-Section (4) further provides that in determining whether the

absence of, or any error, omission or irregularity in, such sanction has

occasioned or resulted in a failure of justice the Court shall have regard

to the fact whether the objection could and should have been raised “at

any earlier stage in the proceedings”.


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11. Sub-Sections (3) & (4) of Section 19 are thus indicative of

objections regarding and/or challenge if any to the sanction, being

maintainable before the Special Judge only and/or in any appeal and/or

other proceedings in the nature of revision etc. arising from the proceedings

before the Special Judge.

12. The aforesaid question assumes relevance not only to determine

whether this Court would have territorial jurisdiction but also whether the

petitioner has alternative remedy. If the petitioner has the option of taking

the pleas as taken herein before the Special Judge, CBI, Greater Mumbai,

then the rule of alternative remedy though not absolute, would bar the

jurisdiction of this Court. Moreover, if the Special Judge is empowered

to entertain all such pleas and the petitioner if aggrieved from the findings

of the Special Judge, CBI, Greater Mumbai has remedies thereagainst,

then such remedies would definitely be in the High Court at Mumbai

under whose territorial jurisdiction the Special Judge is.

13. I find the Supreme Court in State of Madhya Pradesh v.

Jiyalal (2009) 15 SCC 72 to have held that it is open to an accused to

question the genuineness or validity of the sanction order before the

Special Judge. Similarly, in State of M.P. v. Dr. Krishna Chandra

Saksena (1996) 11 SCC 439 it was held that the question whether

before granting sanction all the relevant evidence had been considered or

not, could be examined only at the stage of trial when the sanctioning

authority comes forward as a prosecution witness to support the sanction

order if challenged during the trial and before that stage and at the very

inception, the sanction order cannot be quashed on the supposition that

all the relevant documents were not considered by the sanctioning authority.

Similarly, recently in Chittaranjan Das Vs. State of Orissa (2011) 7

SCC 167 also, it was observed that if disputed questions of fact are

involved, it is expedient to leave the question of validity of the sanction

to be decided by the trial court.

14. Once one reaches a conclusion that the challenge made as in

this petition could be made by the petitioner before the Special Judge,

CBI also, the question of maintainability of this petition under Article 226

of the Constitution arises. Ofcourse, the present petition was filed before

the chargesheet was filed in the Court of Special Judge, CBI, Greater

Mumbai. However, the question still arises whether a person against

whom sanction has been so accorded and whose prosecution is imminent

can, by rushing to the Court, create a situation in which unless stay of

prosecution is granted the challenge to the sanction would become

irrelevant. I am of the view that if such challenge were to be held to be

maintainable, the same would delay the prosecution. The purport of

Section 19(3)(c), prohibiting any Court from staying the proceedings

under this Act on any other ground is again to ensure expeditious decision.

Though the word “Court” in Section 19(3)(c) may not cover the High

Court exercising powers under Article 226 but the legislative intent appears

to be to ensure expeditious trial in such cases. It has been so held in

State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260 also. Reference in

this regard may also be made to State of West Bengal Vs. Mohd.

Khalid (1995) 1 SCC 684 though relating to the Terrorist and Disruptive

Activities (Prevention) Act, 1987 but holding that though in an extreme

and rare case the High Court may be justified in invoking the power

under Article 226, that power is not exercisable where the position may

be debatable. It was further held that in such cases the gamut of procedure

prescribed under the special Act must be followed, namely raising the

objection before the Designated Court and if necessary challenging the

order of the Designated Court. It was yet further held that where the

High Court has to perform the laboured exercise of scrutinizing the

material, there is sufficient indication that the writ jurisdiction under

Article 226 is not available.

15. The petitioner herein has neither shown any reason for this case

to fall in the category of “extreme and rare” nor has shown any ex facie

illegality in the sanction accorded. Rather the counsel for the petitioner

has argued by taking this Court through the laborious exercise of

scrutinizing the material. Thus, no case for entertaining under Article 226

is made out.

16. Mention in this regard may also be made of the judgment of the

Division Bench of Madras High Court in Dr. J. Jayalalitha v. Dr. M.

Channa Reddy, Governor of Tamil Nadu (1995) II MLJ 187 where a

criminal writ petition impugning the order of sanction was held to be

premature for the reason of ample opportunity to raise all contentions

being available. Mention may also be made to the judgment of C.K.

Thakker, J. in Durgaprasad P. Dash Vs. State Bank of Saurashtra

MANU/GJ/0343/1996 speaking for the Gujarat High Court, while holding


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that the powers under Article 226 cannot be curtailed or taken away by

legislation, laying down that the High Court will not be oblivious of the

fact that the petition, before cognizance is taken by the Special Court, is

premature and as and when cognizance is taken it being open to the

accused to take all the contentions that no sanction could have been

granted or that grant of sanction is contrary to law before the Special

Court. It was further held that jurisdiction under Article 226 is to be

exercised in the larger interest of justice and looking to the seriousness

of the allegations, interference with the sanction may not be in larger

public interest. Mention may also be made of State of Punjab Vs.

Mohammed Iqbal Bhatti (2009) 17 SCC 92 where also the Supreme

Court, though in a Civil Appeal and arising from a Civil Writ Petition, held

that the legality and/or validity of the order granting sanction would be

subject to review by the Criminal Courts.

17. The law therefore appears to be that a Civil Writ Petition would

not ordinarily lie in the circumstances.

18. The Full Bench of this Court recently in judgment dated 29th

July, 2011 in LPA No. 819 of 2010 titled C.S. Agarwal v. State had

occasion to determine whether a petition under Article 226 of the

Constitution of India is in the exercise of civil or criminal jurisdiction.

After considering the case law in the regard, the test culled out was

“whether criminal proceedings are pending or not and the petition under

Article 226 of the Constitution is preferred concerning those criminal

proceedings which could result in conviction and order of sentence”. It

was further held that when, the Writ Petition for quashing of an FIR is

filed, if the FIR is not quashed, it may lead to filing of the challan by the

Investigating Agency; framing of charge; and can result in conviction or

order of sentence – seeking quashing of such an FIR would therefore be

criminal proceedings and while dealing with such proceedings, the High

Court exercises its criminal jurisdiction. Seen in this light also, the High

Court which ought to exercise such criminal jurisdiction would naturally

be the High Court within whose jurisdiction, but for the interference by

the High Court, the Court where challan would be filed, charge framed

and order resulting in conviction may be made is situated. Such High

Court in the facts of this case, is not this Court but the Bombay High

Court.

19. I find that in Dhirendra Krishan Vs. BHEL ILR (1999) I

Delhi 538 also Criminal Writ Petition impugning the sanction to have been

preferred.

20. On the aspect of territorial jurisdiction of this Court, the counsel

for the respondent No.3 CBI has also referred to Hari Dutt Sharma Vs.

Union of India 125 (2005) DLT 17 where also this Court refused to

entertain the Civil Writ Petition for the reason of the cause of action

having proximity to Mumbai where the FIR had been lodged and charge

sheet had been filed and the trial was in progress.

21. I therefore accept the objection of the respondents as to the

territorial jurisdiction of this Court and hold that this Court does not have

the territorial jurisdiction to entertain this petition.

22. Alternatively, even if it were to be held that this Court has

territorial jurisdiction to entertain the petition, a five Judge Bench of this

Court in Sterling Agro Industries Ltd. v. Union of India 181 (2011)

DLT 658 has held that this Court can refuse to entertain the petition if

finds another High Court to be a more convenient Court to entertain the

petition. The difficulties in this Court entertaining this petition have already

been noticed above in this Court being not able to issue any directions

to the Court of the Special Judge CBI, Greater Mumbai. For this reason

also, this is an appropriate case for this Court to refuse to entertain the

petition.

23. Though the aforesaid is sufficient for disposal of this petition

but for complete adjudication it is expedient to also deal with the challenge

on merits by the petitioner to the order of sanction. As aforesaid, Delhi

Energy Development Agency (supra) forms the fulcrum of the case of

the petitioner. However, the said judgment itself notices the dicta in P.P.

Sharma (supra) and in Parmanand Dass Vs. State of Andhra Pradesh

(1978) 4 SCC 32 laying down that sanction order is an administrative act

and there is no legal bar for reconsideration or revocation of the order

by the sanctioning authority; rather it was held that “we find that there

could be no legal bar to the sanctioning authority revising its own opinion

before the sanction order is placed before the Court”. However, the

Division Bench of this Court in Delhi Energy Development Agency further

held that the sanctioning authority cannot be left free to change its orders

and decisions at its will and whim though it may reconsider its order and


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that while the competent authority for granting sanction is the Minister

but the competent authority for rejecting the sanction is the respondent

No.2 Railway Board. However in view of the unequivocal position in law

that there is no bar to review of the order and the only test is whether

there was any ground for review or not, the said questions are not

relevant.

26. I may also notice that it is also the contention of the counsel

for the respondent No.2 Railway Board, supporting the counsel for the

respondent No.3 CBI, that the petitioner is merely relying upon the

observations at various stages in the decision making process whether to

grant sanction or not. There is merit in the said contention also. The

Apex Court in Sethi Auto Service Station v. DDA (2009) 1 SCC 180

held that internal notings are not meant for outside exposure and notings

in the file culminate into an executable order affecting the rights of the

parties only when it reaches the final decision making authority in the

department, gets his approval and the final order is communicated to the

person concerned. Similarly, in Jasbir Singh Chhabra v. State of Punjab

(2010) 4 SCC 192, it was held that issues and policy matters which are

required to be decided by the Government are dealt with by several

functionaries some of whom may record notings on the files favouring

a particular person, someone may suggest a particular line of action;

however, the final decision is required to be taken by the designated

authority keeping in view the larger public interest. The said views were

recently approved in UOI v. Vartak Labour Union JT 2011 (3) SC

110.

27. The Indian Railways Vigilance Manual 2006, copy of which has

been handed over, in paras 501 to 515 thereof provides for a detailed

procedure running into several stages for obtaining CVC’s advice in

cases relating to CBI’s request for prosecution with the final decision

being of the Minister, Railways. It is not the case of the petitioner also

that in the present case at any earlier point of time the file was referred

to the Minister.

28. All the aforesaid questions require detailed examination of

documents and records. The same as noticed above is beyond the scope

of writ jurisdiction. Suffice it is to state that an Expert Committee had

been constituted before sanction was accorded. The benefit of the report

of the said Expert Committee was not available when according to the

even revise it but only when some reasonable rationale and valid basis

exists therefor. It was held that such basis may arise where the order is

found to be suffering from some material infirmity, irregularity or perversity

or where some fresh investigation material becomes available to the

authority to dictate a reversal of the first order. The Division Bench in

that case however found no such fresh material and held that different

interpretation on the same material was not permissible.

24. The Supreme Court also recently in State of Himachal Pradesh

v. Nishant Sareen AIR 2011 SC 404 held that it is not permissible for

the sanctioning authority to review or reconsider the matter on the same

material. Earlier in Mohammed Iqbal Bhatti (supra) also while reiterating

that the State in the matter of grant or refusal to grant sanction exercises

statutory jurisdiction and the same would not mean that once exercised

it cannot be exercised once again, it was held that for exercising its

jurisdiction at a subsequent stage, the express power of review in the

State may not be necessary as even such a power is administrative in

character. It was further held that while passing an order for grant of

sanction, serious application of mind on the part of the concerned authority

is imperative and an order refusing to grant sanction would be subject

to review by “Criminal Courts”. In that case, the Supreme Court affirmed

the finding of fact of the High Court that no material was placed before

the competent authority and only a communication had been received

from the Director, Vigilance Bureau and which was not a new material.

Upon finding that no fresh material had been placed before the sanctioning

authority and no case of the sanctioning authority on an earlier occasion

having failed to take into consideration a relevant fact or having taken

into consideration irrelevant fact having been made out, it was held that

the decision ought not to have been changed.

25. A perusal of the sanction order dated 26.04.2011 shows the

same to be containing detailed reasons for according the sanction. The

counsels have also referred to the Allocation of Business Rules, 1961 of

the Government of India, framed under Article 77 of the Constitution of

India, with the counsel for the respondent No.3 CBI contending that the

appointing authority of the petitioner being the President of India and thus

the order granting or refusing sanction could not have been issued by

anyone below the Minister of Railways and the matter having never gone

in the past to the Minister and the counsel for the petitioner contending


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petitioner the sanction was refused. The present is not thus a clear cut

case where it can be said that no new material was available before the

sanctioning authority. The counsel for the respondent No.3 CBI has

referred to Dinesh Kumar Vs. Chairman, Airport Authority of India

2011 (2) JCC 733 where this Court held that the question whether or not

sanctioning authority applied its mind to the facts and the material collected

is a mixed question of law and facts which requires evidence for

determination and if at all the petitioner has any grievance against the

validity of the sanction order, he obviously would get a chance to challenge

its validity before the concerned Court where the charge sheet is filed.

The aforesaid equally applies to the ground of challenge in the present

case also. The question whether any ground for review existed or not

would require going into a plethora of documents and records available

before the sanctioning authority on both the occasions. The said question

is thus a mixed question of law and fact which cannot be adjudicated at

this stage.

29. I may also notice that the question in the present case is of,

what percentage the assets of the petitioner were found disproportionate.

The earlier decision relied upon by the petitioner appears to be guided by

the comparatively small percentage by which the petitioner’s assets were

disproportionate. While exercising equity jurisdiction, this Court would

not exercise the equity in favour of a person who has disproportionate

assets howsoever miniscule they may be.

30. Thus there is no merit in the petition. The same is dismissed.

The petitioner is also burdened with costs of Rs. 20,000/- payable to the

respondent No.3 CBI before the Court of Special Judge, CBI, Greater

Mumbai on the next date of hearing.


WP (C)

RDS PROJECTS LTD. ....PETITIONER

VERSUS

RATANGIRI GAS AND POWER ....RESPONDENTS

PVT. LTD. & ORS.

(SANJAY KISHAN KAUL & RAJIV SHAKDHER, JJ.)

WP (C) NO. : 534/2011 DATE OF DECISION: 17.10.2011

Constitution of India, 1950—Art. 226 Writ—Tender—

interpretation of commercial contract—Petitioner

challenged the order dated 04.10.2010 scrapping/

cancelling tender no.6724/T-138/08-09/SPL/24, as

petitioner was L-1 of respondent no.1, vide writ petition

no. 8252/2010, Respondent no.1, took the plea that he

exercised its right as owner under Article 28.1 of the

Tender document—Writ petition withdrawn with liberty

to take recourse to legal remedy in accordance with

law—Respondent no.1 with respondent no.2 and

respondent No. 3 floated fresh tender no. 6724/T-183/

10-11/SKG/28 with amendment pertaining to clause

8.1.1.1. dealing with past experience of the bidder in

executing a similar work—Challenged the amendement

in clause 8.1.1.1 plea of malice, arbitrariness,

unresonablenes and lack of fairness—Held—

Respondent no.1 withheld completion report received

from Dy. Chief Engineer-IV Mus Car Nicobar island

while seeking independent input from respondent

no.2—Raised certains queries followed by series of

letters—integrity of the entire process was suspect—

Decision of respondent no.1 dated 04.10.2010 fraught

with malice in law, contrary to the principles of fairness,

equity and good conscience—Amended clause 8.1.1.1


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491 492 RDS Projects Ltd. v. Jai Ratangiri Gas and Power Pvt. Ltd. (Rajiv Shakdher, J.)

bad in law.

A perusal of the clause would show that a bidder, would

have to have experience of having successfully completed

as a single bidder or as a leader of a consortium at least

one project of breakwater of a minimum length of 400 metre

located in an off shore location, during the last twenty (20)

years to be reckoned from the last date of submission of

bids. Plain language of the said clause would show that a

project could be executed in different phases. The ordinary

meaning of the word ‘project’ would be “planned undertaking

or scheme” (See The Conscise Oxford Dictionary Ninth

Edition, 1995). Therefore, the fact that the qualifying project

at Mus Car Nicobar Island was executed by RDS in two (2)

phases could not have ousted it. In understanding the

meaning of the words and expression used in a contract,

courts would ordinarily go by the meaning given to the

words by those who administer and operate the contract,

unless that meaning is completely at variance with the

understanding of a common prudent person. Both the experts,

who dealt with the evaluation of the bids, i.e., GAIL and EIL,

despite receipt of material in the form of CAG report and the

Deputy Chief Engineer-IV, Andaman Harbour Works letter,

which indicated that qualifying contract had been executed

in two (2) phases, came to the conclusion that RDS was

eligible and, therefore, the award recommendation did not

require a review. We fail to understand how the legal

department could take a view, on this matter, contrary to

what the persons, who operate these contracts, understood

the expression to mean. In a construction of commercial

contract (if one were to assume for a moment that

construction of contract was required to ascertain the

intention of parties), the accepted rule is that if semantic

and syntactical construction is at variance with the business

common sense, then it must yield to business common

sense. The observations in Antaios Cia. Naviera S.A. v.

Salen Rederierna A.B. (1985) A.C. 191 been apposite are

extracted below:

“While deprecating the extension of the use of the

expression ‘purposive construction’ from the

interpretation of statutes to the interpretation of private

contracts, I agree with the passage I have cited from

the arbitrators. award and I take this opportunity of

restating that, if a detailed semantic and syntactical

analysis of words in a commercial contract is going to

lead to a conclusion that flouts business common

sense, it must be made to yield to business common

sense.”

30.1 The purpose of construction has been described

felicitously by Lloyd L.J. in The Sounion (1987) 1 Lloyd’s

Re. 230 as follows: “Designed to separate the purposive

sheep from the literalist goats.”

30.2 We may note at this stage that we had pointedly put to

the ASG Ms.Indra Jai Singh during the course of hearing, as

to whether there was any doubt or dispute that RDS had not

executed the qualifying work at Mus Car Nicobar Island

equivalent to the contracted length of 500 metres. Ms.Indra

Jai Singh, on instructions, categorically informed us that this

aspect of the matter was not in issue. She, however,

submitted that what was in issue, was the fact, that since it

had now emerged that RDS had completed the project in

two (2) phases; according to EIL, it was not eligible. With EIL

having taken this stand, which was not contradicted by GAIL

at the hearing; it quite surprised us when, Mr.Chandhiok

appearing on behalf of RGPPL took the stand that RDS had

not even constructed the required minimum 400 metres

length of the qualifying work. We may also point out at this

stage the stand of the UOI in its affidavit. UOI has categorically

supported its certificate dated 05.04.2008 and the clarification

issued on 05.06.2010 by the Deputy Chief Engineer-IV,

Andaman Harbour Works. Therefore, this argument of

RGPPL cannot be accepted. (Para 30)


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Important Issue Involved: Malice in law occurs when a

person or an entity commits a wrongful act intentionally

without just cause or reason. In a construction of

commercial contract, if semantic and syntactical

Construction is at variance with the business common sense,

the it must yield to business common sense.

[Vi Gu]

APPEARANCES:

FOR THE PETITIONERS : Mr. Jagdeep Dhankar, Sr. Advocate

with Ms. Asha Jain Madan & Mr.

Mukesh Jain, Advocates.

FOR THE RESPONDENTS : Mr. A.S. Chandhiok, ASG with Mr.

S.K. Taneja, Senior Advocate with

Mr. Puneet Taneja and Mr. Anant

Kumar Sinha, Advocates for

Respondent no.1/RGPPL. Mr.

Gourab Banerji, ASG with Mr. Ajit

Pudussery and Mr. Dinesh Khurana,

Advocates for Respondent no.2/

GAIL. Ms. Indira Jai Singh, ASG

Mr. Ashok Mathur and Ms. Sonam

Anand Advocates for Respondent

No. 3/EIL. Mr. Neeraj Chaudhari,

CGSC with Mr. Mohit Auluck and

Mr. Khalid Arshad, Advocates for

Respondent No. 4/UOI.

CASES REFERRED TO:

1. West Bengal State Electricity Board vs. Dilip Kumar Ray

(2007) 14 SCC 568, para 19 at page 582.

2. R.S. Garg vs. State of U.P & Ors. (2006) 6 SCC 430,

para 25 at page 448].

3. Mahabir Auto Stores & Ors. vs. Indian Oil Corporation

& Ors. (1990) 3 SCC 752, para 13 at page 761].

4. Antaios Cia. Naviera S.A. vs. Salen Rederierna A.B.

(1985) A.C. 191.

5. Shearer vs. Shield (1914) AC 808.

RESULT: Petition disposed of .

RAJIV SHAKDHER, J.

1. This writ petition would bear testimony to the adage that truth

is a conundrum wrapped in mystery surrounded by a multitude of lies.

The petitioner is in court, the second time round, much harried and

exasperated. In the first round the petitioner, i.e., RDS Projects Ltd.

(hereinafter referred to as ‘RDS’) by way of a writ petition bearing no.

8252/2010, sought to challenge the decision of respondent no. 1, i.e.,

Ratnagiri Gas & Power Pvt. Ltd. (hereinafter referred to as ‘RGPPL’)

dated 04.10.2010, conveyed to it on 06.10.2010, seeking to scrap/ cancel

the tender bearing no. 6724/T-138/08-09/SPL/24 (hereinafter referred to

as the “1st Tender”) after it had been declared the lowest tenderer, i.e.,

L-1. RDS withdrew the said writ petition alongwith an application for

grant of interim relief in view of the stand of RGPPL that it had exercised

its rights as an owner under Article 28.1 of the 1st tender. Since the

petitioner apprehended his exclusion by the respondents in the subsequent

round, it sought leave and liberty of this court to take recourse to a legal

remedy in accordance with the law. A Division Bench of this court of

which one of us (i.e., Sanjay Kishan Kaul, J) was a party, granted such

liberty to the petitioner vide order dated 14.12.2010.

2. True to form, RGPPL through aegis of Respondent No. 2, i.e.,

Gas Authority of India Ltd. (hereinafter referred to as ‘GAIL’), and

respondent no. 3, i.e., Engineering India Ltd. (hereinafter referred to as

‘EIL’), floated a fresh tender bearing no. 6724/T-183/10-11/SKG/28

(hereinafter referred to as the ‘2nd Tender’); albeit with a change/

amendment. The change/amendment with which the petitioner is aggrieved

pertains to clause 8.1.1.1. It is pertinent to mention here that clause

8.1.1.1 deals with past experience of the bidder in executing a similar

work. We would be referring to the requisites set out in clause 8.1.1.1

with respect to qualifying work, and as one goes along, the change in

specifications brought about by amendment made in clause 8.1.1.1 in the

2nd tender. We would come back to the amendment in the said clause

made in the 2nd tender, but before that, why the change has taken place

is pertinent, as the petitioner has pleaded malice, apart from the usual


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grounds of arbitrariness and unreasonableness and the lack of fairness on

the part of the respondents in bringing about the said change. We may

note at the outset that the change is brought about in clause 8.1.1.1,

which found a mention in the 1st tender as compared to those which

have been incorporated in the very same clause, in the 2nd tender; even

though subtle, are significant from the point of view of the petitioner.

Therefore, the reason for narrating the background in which the

respondents issued the 2nd tender.

BACKGROUND

3. The Maharashtra State Government, it appears, wanted to

resuscitate the Dabhol Power Project (in short ‘DPP’) which had run

into troubled waters; a story which has been widely recorded. The job

of resuscitation was entrusted to National Thermal Power Corporation

(in short ‘NTPC’) and GAIL. The DPP, inter alia, included a gas based

component, that is, a cycle power project alongwith an integrated LNG

terminal with associated infrastructure facilities; situate in the district of

Ratnagiri, in the State of Maharashtra. Thus, insofar as DPP was

concerned, both components required revival. The first one being a

power block and the second being, the LNG block. In order to execute

the task entrusted to NTPC and GAIL, a joint venture company was

incorporated which, resulted in the birth of RGPPL. The co-owners of

RGPPL were appointed as the owners. engineers to revive the power

block as well as the LNG block. The LNG terminal required protection

and hence, what in technical terms is referred to as ‘breakwater’ had to

be constructed in the sea on shores of which, evidently, the LNG terminal

block was situated. Since the job entailed specialized technical and

engineering experience, knowledge and skill accompanied with marine

facilities as its core competence, GAIL in turn engaged the services of

EIL. The EIL was thus appointed as the primary project management

consultant. The EIL in turn sought and obtained approval of GAIL to

involve one U.K. based entity, namely, Scott Wilson as their back-up

consultant for marine works. RGPPL thus had the luxury of having at

its disposal not one, not two, but three experts.

4. The extent of the role played by the experts is demonstrable

from the averments made by RGPPL in its pleadings before us wherein

it is averred and therefore candidly admitted, that the board of directors

in their deliberations held on 04.10.2010 had come to a conclusion that

in respect of aspects pertaining to: revival/completion of the power blocks

as well as LNG block which would pertain to strategies for “packaging”,

“tendering mode”, and “award recommendations” including “price

negotiations” wherever required; it would have to rely on the owners

engineers, i.e., NTPC and GAIL. Thus, RGPPL’s formalization of award

of various contracts, including the contract in issue, was to be based on

the recommendation of the owner’s engineers.

5. GAIL, in turn, in its pleadings before us, has taken the stand that

as per the arrangement arrived at between the parties, (which inter alia

includes RGPPL), EIL was to prepare the tender, float tender enquiries,

evaluate offers received and finally recommend the award of contract to

GAIL in respect of LNG terminal project. GAIL was thus required to

examine and approve the recommendations of the various stages of the

tendering process which included approving the tender, bidders evaluation

criteria, approving price bids, and finally giving its recommendation for

award of the contract. GAIL thus, in the pleadings, has taken the stand

that in the exercise undertaken by it, of examination and evaluation of

bids till the stage of forwarding the award recommendation to RGPPL

– it followed its own contract in procurement procedures. It is in this

background that it became relevant for us to refer from hereon the

events which led the EIL to float the 1st tender; the queries raised by

RGPPL; the reiteration of EIL of its evaluation, the consequent declaration

of the petitioner as L-1, and finally the curious turn-around of EIL and

GAIL (though sub-silentio) in declaring that the petitioner had been wrongly

declared as L-1; a recommendation dated 01.09.2010 which apparently

formed the basis of RGPPL decision of 04.10.2010 to cancel the 1st

tender.

6. The 1st tender was floated by EIL on 26.06.2009. Against the

said tender, bids were received from five (5) bidders, i.e., the petitioner

before us i.e. RDS, M/s ESSAR Construction Ltd., M/s Afcons

Infrastructure Ltd., Joint Venture of M/s Hojgaard Punj Lloyd Ltd. and

lastly the Joint Venture of M/s Hung-Hua & Ranjit Buildcon Ltd. The bids

of the aforesaid five (5) bidders were evaluated by EIL alongwith their

back-up consultant, Scott Wilson, U.K. Upon evaluation, it was found

that Hung-Hua & Ranjit Buildcon Ltd. were not technically qualified,

resultantly, the said bidder was disqualified. This resulted in four (4)

bidders being left in the field. Consequently, EIL recommended to GAIL


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that the price bids of the said four bidders be opened. It would be

pertinent to note at this stage that under the terms of the 1st tender,

which are no different, we are told in the 2nd tender, the price bids could

only be opened qua bids which were found to have qualified in the

techno-commercial round, i.e., their bids were found technically and

commercially suitable. (See clauses 24 and 25 of the instructions to

bids).

7. It is in this background that EIL on 24.12.2009 recommended

the name of the remaining four (4) bidders for appropriate approval of

GAIL in respect of their price bids. It appears that GAIL, while evaluating

EIL’s recommendation observed that the foreign consultant, i.e., Scott

Wilson, U.K., had not accepted the adoption of “sling” methodology

used by RDS for transporting, loading and placement of rock armour for

construction of breakwater, in the contract evidently earlier executed by

RDS. Therefore, by a communication dated 30.12.2009, GAIL sought

reconfirmation from EIL, whether it ought to accept the sling methodology

adopted by RDS. EIL by a return letter 31.12.2009, confirmed that RDS

would not use the sling methodology while loading out and placing rock

armour and that instead, it would use what is known as “hydraulic grab”

technology. GAIL, however, by a communication dated 25.01.2010 called

upon EIL to seek the opinion of Scott Wilson, U.K. in that regard. EIL

evidently discussed the matter with Scott Wilson, U.K, and thereupon,

vide letter dated 01.02.2010 forwarded the Scott Wilson, the U.K.

addendum to their earlier technical evaluation report dated 29.01.2010.

By virtue of this addendum, Scott Wilson, U.K. evidently confirmed the

inclusion of RDS in the list of those bidders whose price bids had been

recommended for being opened for appropriate evaluation. GAIL,

thereupon reviewed EIL’s price bid opening recommendation, and after

appropriate review conveyed its approval for price bid opening of the

very same bidders, who EIL had recommended in the letter dated

24.12.2009. Once again RDS was included in the list of recommended

bidders.

8. Consequently, on 11.02.2010 in the presence of the said

recommended bidders, the price bids were opened. It was found that

RDS, i.e., the petitioner, was the lowest bidder at (approximately) Rs 390

crores, while the next lower bidder was Afcons Infrastructure Ltd.,

whose price was higher by about Rs 160 crores in comparison to RDS,

(having bid at Rs 550 crores). On 26.2.2010, EIL forwarded their

recommendation to GAIL. It is pertinent to note that the justification cost

(i.e., the estimated cost of the project) at the lower end of the spectrum,

was nearly Rs 662 crores (approximately).

9. On receipt of requisite recommendation and the back-up material,

GAIL upon appropriate examination and approval of the competent authority

forwarded its recommendation to RGPPL vide communication dated

08.03.2010. In this communication, GAIL advised that while, executing

the contract, RDS should ensure that: it would inter alia provide suitably

experienced staff with sufficient equipment to ensure quality and adherence

to time schedule; demonstrate and implement appropriate planning and

co-ordination of resources, undertake design technical reviews to

international standards; and lastly, provide site supervision staff experienced

in breakwater construction; once again, to ensure quality of construction

and compliance with specifications. To be noted, the communication

ended by explicitly stating therein that the recommendation had the approval

of competent authority, and is generally in line with GAIL’s procedure

and system.

10. From the point of view of the RDS, one would have imagined

that the execution of the formal contract hereon would be a given. This

was, however, not so as RGPPL by a letter dated 26.03.2010 sought

various clarifications including in respect of aspects mentioned in GAIL’s

letter dated 08.03.2010 issued to RDS, to which we have made a reference

hereinabove. The interesting part is that in respect of query no. 5 raised

in the aforementioned letter, RGPPL brought to attention of GAIL that

the estimated cost of the project was Rs 662.80 crores plus minus 25%,

whereas bid of RDS, which was declared as L-1, was lower than the

estimated cost by approximately 41.17%. RGPPL went on to state that

if the bid, is abnormally low, then it ought to give the owner sufficient

cause to reject the bid unless after due scrutiny and analysis of the rates,

it is convinced about the reasonableness of the bid. RGPPL thus sought

GAIL’s response to this query amongst others. It would not be out of

place to mention that RGPPL also raised a doubt about RDS’s ability to

complete the breakwater project at hand in the given time frame of thirty

three (33) months when, on its own showing, it had taken three (3)

years for it to complete a breakwater project at Mus Car Nicobar, of 500

m; which incidently was shown as its qualifying work in the bid


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Rs.5.00 lakhs

documents. In this background, since the bid was valid till 30.04.2010,

a request was made by RGPPL to seek the extension of validity of the

bid till 15.05.2010. RGPPL also sought a copy of the recommendation

of Scott Wilson, U.K. on the aspect of the confirmation received from

RDS that it would use hydraulic garb technology as against the sling

method for load out and placing of rock armour. GAIL, by its letter dated

07.04.2010 gave a detailed point wise response to all eight queries, to

which we have made a mention hereinabove, including queries raised

pertaining to the difference between estimated cost and the bid price of

RDS, and the capability of RDS to execute the project within the stipulated

thirty three (33) months, given its experience in executing such like

projects. The relevant part of the response on this aspect reads as follows:

“......A.5 Accuracy of Cost Estimate:

The price quote of L1 bidder is reasonable as compared to lower

bound cost estimate. The reasons for the same are as per

Annexure -1 attached with the letter.

A.6 Project Execution time and Bidders Capability:

Based on the critical review of M/s RDS Projects offer, their

replies to various technical queries and detailed presentation on

execution/ construction methodology for the tendered work

indicates that M/s RDS Projects is capable of executing the

subject tender works in the stipulated time schedule.

Further, project execution time for any breakwater project is

dependent on resources mobilization, availability of query at nearby

location and marine environmental conditions at site etc. and

therefore project completion time periods may differ even though

project physical parameters (size and shape) may be

comparable....”

10.1 The communication ended with the GAIL appending the

addendum to its technical recommendation dated 29.01.2010, pertaining

to the issue of the technology which, RDS proposed to use for execution

of the work at hand. It is pertinent to note at this stage that both the

recommendation of GAIL dated 08.03.2010 whereby, RDS was

recommended for award of the work and, the response dated 07.04.2010

pursuant to the first stage of queries raised by RGPPL, vide its letter

dated 22.03.2010 were sent under the hand of the same officer, i.e., Mr

M.B. Gohil, General Manager (Project), GAIL.

10.2 Interestingly, in the interregnum as if by co-incidence, a writ

petition was filed in this court by Ranjit Buildcon Ltd., that is, the

unsuccessful bidder, inter alia, seeking a direction that RDS be declared

as being ‘technically non-qualified’ for undertaking the DPP and

appropriate direction to quash any letter/LOI issued by RGPPL in favour

of RDS in respect of the said project. The affidavit appended to the said

writ petition is dated 22.03.2010. This writ petition, which was numbered

as WPC(C) No. 2142/2010 bears the date 23.03.2010. As indicated above,

the first set of queries of RGPPL to GAIL, is also a communication,

dated 22.03.2010.

11. It appears that by a letter dated 25.03.2010, RGPPL formally

informed GAIL as regards institution of the writ petition by Ranjit Buildcon

Ltd. This communication was based evidently on a notice dated 23.01.2010

received from the solicitors of Ranjit Buildcon Ltd. A copy of the writ

petition was enclosed to the said communication of RGPPL. A detailed

reply was sought by RGPPL for its purposes. GAIL in turn forwarded

a copy of the writ petition to EIL vide its communication dated 29.03.2010,

while recording therein that discussions with regard to the institution of

the writ petition had been held in the office of Managing Director of

RGPPL on 26.03.2010. This letter was also issued under the hand of

M.B. Gohil. On 09.04.2010, EIL dispatched a point wise reply in respect

of the averments and allegations made in the writ petition filed by Ranjit

Buildcon Ltd. Apparently in respect of the qualification of RDS, the

response prepared by EIL was as follows:

“RDS Not Qualified (Reply to point nos. 25, 26, 28, 29, 30, 31,

32, 33 & 34)

Requirement of Bidder’s Qualification Criteria (in case of single

bidder) as set out in the IFB are as follows:

The bidder shall have experience of having successfully

completed, as a single bidder, or as a leader of a consortium/

joint venture, at least one project of a breakwater in an offshore

location (offshore location is defined as the area submerged in

the ocean sea) of minimum length of 400m during the last 20

(twenty) years to be reckoned from the last date of submission


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of bids. Documentary evidence submitted along with the bid

offer conclusively established that:

. Breakwater at MUS in Car Nicobar Island is located at an

offshore location

(Refer Annexure – 1: Completion certificate issued by

Ministry of Shipping, Road Transport and Highways –

Department of Shipping, Little Andaman which mentions

that “The entire work has been executed in sea (beyond

low water line) by M/s RDS Projects Ltd., and they have

successfully completed during June 2003”.

. M/s RDS has completed the entire works pertaining to

breakwater at MUS in Car Nicobar island as a single

entity on behalf of M/s Ellen Hinengo Ltd. (Refer Annexure

-1: Completion certificate issued by Ministry of Shipping,

Road Transport and Highways – Department of Shipping,

Little Andaman). Hence, meeting the BQC requirement of

qualifying project.”

12. GAIL by a letter of even date, i.e., 09.04.2010, forwarded the

same to RGPPL. RGPPL wasted no time in responding to GAIL’s

communication and thus, by a return communication of even date, i.e.,

09.04.2010, sought the following from GAIL: (a) The letter of award

containing detailed scope of work, contract value, payment terms,

completion schedule and other contractual stipulations, and (b) the veracity

of the completion certification submitted by RDS projects ltd., duly

verified by GAIL/EIL.

12.1 These documents were sought ostensibly in order to enable

RGPPL to prepare its reply in response to the writ petition of Ranjit

Buildcon Ltd. GAIL by a return communication dated 12.04.2010, informed

RGPPL that a work order for the qualifying project (work) had already

been submitted by RDS, though detailed work order was not available

with the bid documents filed by RDS. In so far as the completion

certificate is concerned, GAIL stated that RDS had furnished a completion

certificate issued by the Ministry of Shipping, Road Transport and

Highways Department of Shipping, Government of India and, therefore,

they had no reason to doubt the veracity of the document.

12.2 RGPPL reiterated its request for work order vide letter dated

28.04.2010. EIL, on its part sent an email dated 24.05.2010 and 30.04.2010

seeking a copy of the work order of its qualifying work. GAIL, by a

letter dated 21.05.2010 informed RGPPL that though they had not received

the work order from EIL, they had been following up the issue.

12.3 Interestingly, RGPPL, it appeared, was looking for information

which perhaps, it already had in its possession by virtue of the Comptroller

and Auditor General (in short ‘CAG’) report number 2/2002 which seemed

to suggest that the qualifying work, i.e., the breakwater constructed at

Mus Car Nicobar Island in the Andaman Nikobar Island had been

constructed in “phases”. Therefore, while the website of Andaman

Lakshdeep Harbour Works observed that there was only one breakwater

at Mus Car Nicobar Island with a length of 490 m, it desperately wanted

the work order to establish the fact that RDS had executed the qualifying

work/project not at one go but in different phases by virtue of the

separate contracts. Therefore, by a letter dated 26.05.2010, RGPPL once

again sought the copy of the work order. It is in this letter that RGPPL

for the first time, revealed the information that it had in its possession

by virtue of what was available on the website of Andaman Lakshdeep

Harbor Works, and that which it found contained in the CAG’s report.

It may be noted that GAIL evidently referred to contents of this letter to

EIL vide email dated 27.05.2010. RGPPL, on the other hand, raised

pointed queries for the first time with respect to qualification criteria

provided in clause 8.1.1.1. In the context of the qualification criteria

provided therein, it sought to know from GAIL that the GAIL had declared

RDS as qualified based on a certificate dated 05.04.2008 issued by the

Dy. Chief Engineer, Andaman Harbour Works. It was put to GAIL that

since the certificate referred to a tender of 26.05.1999, the certificate did

not state the scope of the qualifying work involved construction of a

breakwater of 500 m length. It went on to say that viewed in the

background of the CAG’s report (which is a report of 2002), the scope

of the tender was limited to 290 metre, therefore, it questioned the

conclusion arrived at by GAIL that RDS had the requisite experience of

constructing 500 metre breakwater. The communication ended with

RGPPL invoking clause 9 of the instruction for bidder (in short ‘IFB’)

which empowered it to seek further documents from the bidder. Based

on this clause, RGPPL asserted its rights to receive a copy of the work

order. It appears that GAIL sent a communication dated 09.06.2010 on


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the aspects on which queries had been raised by RGPPL. RGPPL on its

part seems to have sought and obtained clarifications from the Dy. Chief

Engineer-IV, Andaman Harbour Works. The said Dy. Chief Engineer-IV

vide its letter dated 05.06.2010 issued its clarification which were forwarded

for consideration of GAIL and EIL. The said communication being crucial

for the purposes of adjudication of matter in issue, for the sake of

convenience, the relevant portion is extracted hereinbelow:

“With reference to the above, it is to inform that the work in

question, “Construction of Breakwater and Wharf at Mus in Car

Nicobar Island” was executed under Deputy Chief Engineer-IV

circle. Most of the office records which were maintained in

Little Andaman & Car Nicobar Island were washed away during

Tsunami waves on 26th December 2004. The following details

were furnished based on the available information.

It is reiterated that the subject breakwater was completed in June

03 and has witnessed Tsunami in the Dec 04 wherein entire

establishment at Nicobar was washed away thus no records are

available due to old case and havoc created by Tsunami. Thus

clarification as asked for cannot be given as per format attached.

However, it will be my endeavour to give details at my best.

Briefly it is submitted that this only offshore breakwater of

22-490 mtr. Length (Constructed length of 500 mtr.) at Mus

Car Nicobar was constructed in two phases/ contracts both

of which were awarded to M/s EHL a tribal society of Car

Nicobar Island in continuation i.e., before the first work

completed the second was awarded.

First contract bearing no. EEM/LA/DB/A-10/95-96 dated

5.6.1995 valuing 14.10 crores, was awarded to M/s EHL with

all items of work connected with construction of breakwater

i.e., mining and supply of boulders of various sizes, Tetrapod

casting and placing mining/ crushing aggregates etc.

Subsequently to augment further progress, another agency

M/s Reacon International was introduced against work order

valuing 6.28 crores against supply of boulders only. EOT

granted to M/s EHL as delay not attribute table to them.

Therefore, finally the balance work including left over items

of 1st contract was put to tender and awarded to M/s EHL

vide DCE/LA/DB/T-2/99-2000 Vol. IV 3318 dated 3rd Nov.

2000 valuing 30.01 crores for final completion of the

structure. No EOT involved. It is hereby certified that M/s

RDS Project Ltd. was the sole construction agency for and

on behalf of M/s EHL, for undertaking all activities under

these contracts to which their performance had been

exemplary.” (emphasis is ours)

13. EIL on its part, examined the certificate dated 05.04.2010 issued

by the Deputy Chief Engineer-IV, Andaman Harbour Works, in the light

of the queries raised by RGPPL and the clarification issued on 05.06.2010

by the said Deputy Chief Engineer. In this regard, the CAG report number

2/2002 was also noticed wherein it had been stated that the work had

been completed in “phases”. After reviewing the material placed before

it, EIL vide its communication dated 10.06.2010 concluded that even

though the qualifying work at Mus Car Nicobar Island had been completed

in two phases, its recommendation did not “necessitate any revision in

the award recommendation”. It is pertinent to note that the said

communication of 10.06.2010, which reviewed the material placed before

it by RGPPL, inter alia, the CAG report and the clarification dated

05.06.2010 issued by the Deputy Chief Engineer –IV, Andaman Harbour

Works indicating that the qualifying project at Mus Car Nicobar Island,

had been executed by RDS in two phases and by virtue of two separate

contracts, was signed off under the hand and signatures of Sh. R.K.

Bhandari, General Manager (Projects), EIL. The reason why we have

referred to the signatories would become clear as we progress further

with our narrative.

14. The communication dated 10.06.2010 was not, it appears, to

the liking of RGPPL. Consequently, RGPPL vide another communication

dated 15.06.2010, returned GAIL’s recommendation of 08.03.2010 on

the ground that documentary evidence substantiating that the RDS met

the Bidder Qualification Criteria (in short ‘BQC’), had not been furnished.

In this communication, RGPPL went on to say that the GAIL’s

recommendation was conditional (these so called conditions have already

been referred by us hereinabove in the earlier part of our judgment). It

directed RGPPL to withdraw these conditions appended to their

recommendation. It also went on to note that the clarification issued by


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the Deputy Chief Engineer – IV, Andaman Harbour Works vide letter

dated 05.06.2010 was not backed by any institutional data. In the context

of all this, it sought documentary evidence to establish “beyond doubt”

(i) whether the RDS was a single bidder for the qualifying (work) project;

(ii) whether the RDS had successfully completed one project of

breakwater of minimum length of 400 meter; and (iii) whether the

qualifying project breakwater was in an offshore location as per BQC.

15. The letter dated 15.06.2010 was followed by RGPPL’s letter

dated 22.06.2010. It now sought clarification regarding non-submission

of audited financial statements by RGPPL for the immediately preceding

financial year, i.e., 2008-09. The purpose being: evidently to analyze the

financial credentials of RDS. GAIL, as in the past, by a communication

dated 23.06.2010 written under the hand of Mr M.B. Gohil, General

Manager (PD-GP), forwarded the same to EIL. This time the

communication was addressed to one Shri Ravi Saxena, Dy. General

Manager (Project). Earlier, communications were addressed to

Mr.R.K.Bhandari, General Manager (Projects). As is evident, RGPPL had

again changed the goal post as it now sought to inquire as to whether

the net worth of RDS was positive during the financial year 2008-09.

EIL vide letter dated 1.07.2010 once again sent a comprehensive reply

to the RGPPL’s letter dated 26.06.2010. EIL confirmed that the RDS

met the financial criteria, as stipulated in the tender. As regards non-

availability of the balance sheet for the financial year 2008-09 was

concerned, EIL informed that since the unpriced bid was opened on

16.09.2010, the tenderers, whose financial year closed thereafter, were

at liberty to submit the audited financial statements of those three (3)

years which preceded the said date. Nevertheless, audited financial

statements of RDS of 2008-09 were also obtained and furnished to GAIL

for onward transmission to RGPPL. In order to put the matter “beyond

doubt”, GAIL on its part, sought in the interregnum, the opinion of the

Attorney General of India on 28.06.2010. Suffice it to say, that the

Attorney General vide his opinion dated 30.06.2010, opined that RDS

qualified the single bidder qualification criteria provided in the 1st tender.

It is pertinent to note at this stage that even though the documents

pertaining to the execution of the qualifying work at Mus Car Nicobar

Island had been obtained including the report of the CAG and the

clarificatory letter dated 05.06.2010 of the Dy. Chief Engineer-IV, Andaman

Harbour Works – the query on which the opinion of the learned Attorney

General was sought by GAIL, was in the light of the fact that the

qualifying work having been awarded to Ellon Hinengo Ltd. (in short

‘EHL’), whether RDS could be considered as the person who had executed

the contract. In other words, in the context of the fact that the work had

been awarded to EHL, whether RDS would stand in the position of a

sub-contractor.

16. Given the response of EIL and the opinion of Attorney General

received by GAIL, GAIL by a communication dated 10.07.2010 forwarded

the synopsized response of EIL that; (i) the entire work of construction

of breakwater at Mus in Car Nicobar Island was executed by RDS

on behalf of EHL; (ii) the contracted length of the breakwater was

500 meters; (iii) the entire work was executed in sea (beyond low

water line) by RDS; (iv) the work was successfully completed in

June, 2003; (v) the qualifying work was executed by RDS as a

single bidder which met the BQC stipulated under the first tender;

(vi) Even though the CAG report no. 2/2002 and the clarificatory

letter of the Deputy Chief Engineer – IV, Andaman Harbour Works

dated 05.06.2010 suggested that the work had been completed in

two phases/ contracts both of which were awarded to EHL; the

additional information did not necessitate any revision in the

recommendation for award of work to RDS; (viii) the completion

certificate dated 05.04.2008 is considered as adequate evidence of

the qualifying work having been executed; (vii) Learned Attorney

General had opined that RDS having done the entire work, was

qualified under the expression ‘single bidder’ in relation to the 500

meter breakwater project by RDS in Mus Car Nicobar Island; (ix)

the conditions thus far referred to in GAIL’s letter dated 08.03.2010,

were advisory in nature, as indicated in GAIL’s letter dated

09.04.2010; therefore, GAIL’s recommendation could not be

construed as a conditional recommendation; (x) RDS met the

financial criteria, as was indicated in EIL’s letter dated 01.07.2010;

(xi) it specifically referred to item no. 6.2.3 in the agenda of the 6th

board of directors meeting of the RGPPL, wherein it had been in

particular observed that RGPPL would have to rely, inter alia, on

the recommendations of NTPC and GAIL qua the LNG block; and

(xii) finally, after recording the aforesaid, GAIL once again reiterated

its recommendation of 08.03.2010 and called upon RGPPL to re-

consider the award of the said work to RDS.


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16.1 The communication ended by noting that without the breakwater,

capacity utilization of LNG terminal would be limited to the extent of

20% and that consequently the daily loss because of the failure to utilize

the terminal to its full capacity was working out to Rs 1.50 crores. The

communication, however, ended by putting the onus back on RGPPL by

indicating therein that since RGPPL was the owner, it would have a final

view in the matter. This communication was once again issued under the

hand of Mr M.B. Gohil of GAIL. The letter contained enclosures such

as GAIL’s recommendation dated 08.03.2010 (in original), copies of

EIL’s letters dated 10.06.2010 & 01.07.2010 alongwith annexures and

opinion of Attorney General of India dated 30.06.2010.

17. It appears that in the meanwhile, RGPPL had preferred an

application under the Right to Information Act, 2005 (in short ‘RTI’)

with the Andaman Harbour Works. Seeking information and documents

vis-a-vis the qualifying work; this included the work order dated 27.04.1995

awarded to EHL and the scope of work of the qualifying tender. The

documents obtained were forwarded to GAIL by RGPPL vide its letter

dated 26.07.2010. It would be important to note that a perusal of the

record submitted by RGPPL would show that just prior to issuance of

the letter dated 26.07.2010, its Board of Directors had convened a meeting

on 20.07.2010. A perusal of the minutes would show that one of the

Directors had raised an objection as to why the Managing Director had

initiated the agenda on the LNG terminal while in respect of other LNG

terminals meetings had been initiated at the behest of the Dy. M.D. The

Managing Director of RGPPL seems to have suggested that the Board

note had been prepared with the knowledge of the Dy. M.D. and all

versions of the draft notes had been shared with him. The Dy. M.D.,

however, took the stand that since the Board note contravened the opinion

of the ‘GAIL Directors’, he would not be amenable to appending his

signatures on the Board note. As a matter of fact, two Directors took the

position that since the owners. Engineers had opined that RDS fulfilled

the BQC requirements, the contract ought to be awarded to RDS. The

Managing Director took a contrary position. The events which followed

hereafter would show that this dissent for some curious reasons

disappeared, even though there was no material change in circumstances.

Importantly, there is no reference to these minutes in the affidavit filed

by RGPPL. GAIL, on its part furnished, by a letter of even date i.e.,

26.07.2010, the said information to Mr R.K. Bhandari, General Manager

(Projects) of EIL. By this letter, GAIL called upon EIL to review its

recommendation based on the documents received through the RTI route,

particularly, in the context of its earlier evaluation of RDS as conforming

to the BQC under the 1st tender. This letter was sent under the hand of

Mr M.B. Gohil, General Manager, GAIL, and as indicated above, addressed

to Mr R.K. Bhandari, General Manager (Projects) in EIL. Since in the

meanwhile, as noticed above, Ravi Saxena had been given the task of

evaluation on behalf of EIL, he did the needful and communicated his

assessment vide email dated 11.08.2010. After “critically” reviewing the

material at hand, which RGPPL had obtained through the RTI route, EIL

opined as follows:

“1. During the evaluation stage, M/s RDS offer was evaluated

based on the documents furnished in their offer which

include completion certificate no. DCE/LA/GI-20/928 dated

5.4.2008 issued by Dy. Chief Engineer – IV Andaman harbor

Works Little Andaman. As the said completion certificate

contained all the requisite information as per bid stipulations,

M/s RDS was considered as qualified bidder.

2. Information which has now been made available to us

additionally has been critically reviewed and it is found that

contents of documents are not inconsistent with each other and

therefore, we may not take cognizance of the said documents.

Moreover, though the work of breakwater at MUS has been

carried out in two phases under two separate work orders,

it may be considered as single project as Completion

Certificate (No. DCE/LA/GI-20/928 dated 5.4.2008) issued to

M/s RDS is for the entire breakwater length. This fact is

further corroborated by the letter No. DCE-IV/LA/ALHW/

CAMP:PBF-35/764 dated 05/06/2010 issued by the office of

Deputy Chief Engineer-IV which enumerates that M/s RDS

was the sole construction agency for & on behalf of M/s

EHL for undertaking all activities under these contracts to

which their performance had been exemplary and also by

the extract of CAG Report No. 2 of 2002 (Civil).” (emphasis

is ours)

17.1 The communication included the opinion that no revision in

the award recommendation was necessitated at this stage.


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18. Curiously, despite this emphatic stand, EIL took a complete u-

turn on 01.09.2010 in response to GAIL’s letter dated 26.07.2010 which

had already been replied by EIL vide its e-mail dated 11.08.2010. Based

on the same material, which as per the e-mail of 11.08.2010 had been

critically reviewed, it came to an entirely different conclusion and the

person who came to this conclusion was the very same gentleman, i.e.,

Ravi Saxena, who had issued the earlier communication, i.e., e-mail dated

11.08.2010. In his communication of 01.09.2010 the officer opined as

follows:

“Considering the facts as brought out from above mentioned

documents, it is evident that Ministry has awarded project

for construction of breakwater from chainage 22 to 200

meters and project for construction of breakwater for

chainage 200 to 330 meters subsequently extended to 490

meters as separate projects. In view of the documents made

available and having perused all the documents in

concurrence with each other, it emerges that since both the

phases have been considered as separate projects by the

Ministry, M/s RDS can not club the experience of having

executed two separate projects to qualify the BQF which

requires that the bidder should have experience of at least

one project of a breakwater in an offshore location of

minimum 400 m.

In light of above, it is concluded that experience submitted

by M/s RDS can not be taken as execution in ‘single project’

and therefore, M/s RDS does not meet the BQC

requirement.”

19. This aspect of the matter troubled us immensely. Therefore, in

the hearing held before us, we had put to the learned counsel for EIL,

Mr Ashok Mathur as to how on the very same material, the same person

i.e., Ravi Saxena, Deputy General Manager (Projects), EIL could have

come to a diametrically converse conclusion. Mr Mathur had no answers,

till he was guided by an officer of EIL by drawing his attention to a legal

opinion on record of one Ms Smita Sehgal dated 26.08.2010. We had put

to Mr Mathur during the course of hearing, as to whether this aspect had

been disclosed in the counter affidavit filed by EIL in court. Mr Ashok

Mathur quite fairly conceded that this aspect had not been referred to in

the counter affidavit filed by EIL. In these circumstances we had put to

Mr Mathur whether at this point in time, when respondent no. 3/EIL had

already concluded its submissions in reply, would it be fair to refer to

those documents or allow the said legal opinion to be placed on record

in the midst of the hearing when the petitioner had no opportunity to deal

with it in the rejoinder placed on record. EIL having been caught on the

wrong foot, however, persisted in its efforts. Consequently, towards this

end, an application was filed and moved before us on 12.09.2011 when,

after recording our observations that there ought not to have been any

need to file the said additional affidavit (which was sought to be done by

way of an application) as EIL was aware of the case set up by the

petitioner, and therefore, our queries, could not have come as a surprise

- the application was allowed and EIL was permitted to place the

documents filed on record even at that fag end of the hearing, only to

enable EIL to have its complete say; though the analysis of the effect of

the document was made subject to the final outcome of the case. The

application was allowed with cost of Rs 50,000/-. Liberty was granted

to the petitioner to meet this new development by way of an oral rejoinder

at the hearing to follow.

20. It would be, therefore, important to deal with this aspect of the

matter which evidently brought about change of heart and mind in the

EIL’s officer led by Ravi Saxena. The affidavit accompanying the appeal

adverts to the fact that pursuant to email dated 11.08.2010 issued by

Ravi Saxena of EIL, the then Dy. General Manager (Projects) an internal

meeting was held to ascertain the view, (we assume of the legal

department), in the light of additional material made available to EIL. A

decision was taken at this meeting evidently to refer the matter to the

legal department for their opinion. To be noted, the date of this internal

meeting is not adverted to in the additional affidavit dated 06.09.2011

filed by Ms Smita Sehgal. The affiant, however, adverts to an inter-office

memorandum dated 20.08.2010, whereby the material was forwarded to

the legal department seeking its opinion. It is in that background that legal

department on 26.08.2010 opined that RDS did not meet the BQC

requirement of the 1st tender. We may only notice that the opinion

concludes by stating that since the Ministry had awarded the project for

construction of breakwater (qualifying project) from chainage 22 to 200

meters, and the project for construction of breakwater from chainage

200 to 300 meters (subsequently extended 490 meters), RDS had


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experienced not of a “single project” but of “two projects”, and hence

did not qualify the BQC requirement of the 1st tender which required the

bidder to have experience of at least one project of a breakwater in an

offshore location of minimum length of 400 meters. The author of the

opinion is also the affiant to the additional affidavit. Ms Sehgal pivots this

view on the strict construction of the language of the document in issue

and goes on to say that however “harsh” “absurd” or even contrary to

common perception the conclusion may be, that is the only conclusion

she could draw on the construction of the document. What is even more

interesting is that this very legal opinion bears the endorsement dated

27.08.2010 of Mr.Grover Director (Projects) – calling upon Mr R.K.

Bhandari, General Manager (Projects) to follow the opinion of the legal

department. It is important to remind ourselves at this juncture that till

10.06.2010, it was the same R.K. Bhandari, who opined based on the

very same additional information, (which formed the edifice of Ms Smita

Sehgal’s opinion) that material forwarded did not necessitate revision in

award recommendation. There is no averment in the affidavit as to

whether Mr.Grover called a meeting of Mr.R.K.Bhandari and Mr.Ravi

Saxena to discuss the opinion of the legal department. Mr Grover’s

endorsement suggests quite clearly that he left no scope for debate or

discussion.

21. On receipt of EIL’s revised recommendation of 01.09.2010,

GAIL vide communication dated 18.09.2010 simply forwarded the opinion

of EIL to RGPPL. In its communication, GAIL made it clear that since

RGPPL was the owner under the contract, it should take appropriate

action at their end. The RGPPL was, at this stage, not happy with the

communiquT of GAIL whereby, the onus for the final decision was put

on it, therefore by a letter dated 20.09.2010 it called upon GAIL to

forward its recommendation based on the communication of EIL dated

01.09.2010. This letter of RGPPL dated 20.09.2010 is not on our record,

though it finds mention in paragraph 37 of the affidavit filed by Mr.M.B.

Gohil. GAIL, however, did not oblige as is evident from its letter dated

22.09.2010. GAIL after giving reference to its earlier recommendation

dated 08.03.2010, and also letters dated 09.04.2010, 21.04.2010,

09.06.2010 and 10.07.2010, put the onus back on RGPPL to take a

decision in the matter being the owner of the project as it had in its

wisdom, all the relevant information, on the subject, available with it. The

author of letters dated 18.09.2010 and 22.09.2010 is one Sh. S.C. Khetan,

Dy. General Manager (PD), in GAIL, who appears to have taken over

from M.G. Gohil. It appears that given the stance of GAIL, RGPPL

proceeded to take a stance in the matter. Consequently, by email dated

07.10.2010, RGPPL informed GAIL that they had taken a decision at

their Board of Directors meeting held on 04.10.2010 to annul the 1st

tender. It also indicated in the said communication that by a letter dated

06.10.2010, this decision had also been conveyed to RDS. Since RDS

had been disqualified, their EMD was also sought to be returned. GAIL,

by this very communication had been asked to re-float a fresh tender.

The email of 07.10.2010 was followed by a letter dated 13.10.2010 of

RGPPL to GAIL broadly conveying the same information. Consequent

thereto, GAIL informed EIL vide letter dated 19.10.2010 to initiate a

fresh tender process for construction of breakwater works at the LNG

terminal. On 31.12.2010, EIL forwarded the NIT alongwith international

competitive bidding (in short ‘ICB’) and the BQC for fresh tender (i.e.,

the 2nd tender) to GAIL for approval. The tender committee, comprising

of the executive director, approved the issuance of the said documents

with the amended clause 8.1.1.1. This document was further approved

by the competent authority, i.e, the Director (Marketing). The approval

was obtained on 06.01.2011. Based on the above, EIL floated the 2nd

tender inquiry on an ICB basis on 12.01.2011. It is this 2nd tender which

contains the amended clause 8.1.1.1 which is the cause of grievance in

the present writ petition.

SUBMISSION OF COUNSELS

22. In the background of the aforesaid facts and circumstances,

submissions were made by counsels for parties. The arguments have

been addressed before us on behalf of petitioner/RDS by Mr Jagdeep

Dhankar, senior advocate; on behalf of RGPPL by Mr A.S. Chandhiok,

Addl. Solicitor General (ASG); on behalf of GAIL by Mr Gourab Banerji,

ASG; and on behalf of EIL by Mr Ashok Mathur, Advocate. Ms Indira

Jai Singh, learned ASG made submissions on behalf of EIL in support

of the application filed, to bring on record the legal opinion, which has

been referred to above by us. Mr Neeraj Choudhari, CGSC made

submissions on behalf of UOI.

23. Mr Dhankar in his submissions has taken us minutely through

those very documents which we have referred hereinabove to show how

the owners engineers, GAIL as well as EIL till 11.08.2010 consistently


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adhered to the stand that their recommendation to award the contract to

RDS did not require any revision. He submitted that the change which

was brought about on 01.09.2010 was made with a malafide intention

only to oust the petitioner. The decision in respect of the said change

was recommended by Ravi Saxena on behalf of the EIL, who was also

the author of the earlier communication dated 11.08.2010, wherein he

had conveyed to GAIL and through GAIL to RGPPL that notwithstanding

the qualifying work having been executed by the petitioner in “two phases”

under two contracts, the petitioner was eligible and its recommendations

for award of contract to RDS did not require a revision. Mr Dhankar

submitted that the action of the respondent was fraught with malice,

arbitrariness and lacked complete fairness, in as much as, the only intent

of RGPPL was somehow to get the EIL and GAIL to change their

opinion so that RDS was ousted from the work in issue. Having achieved

in its design, RGPPL presented this court with fate accompli when the

petitioner/RDS filed a writ petition bearing no. 8252/2010 to challenge

RGPPL’s decision of 04.10.2010 by cancelling the 1st tender altogether.

The petitioner/RDS was thus left with no option but to withdraw the

petition and take its chance in a fresh round if and when the work were

to be awarded. The RDS’s apprehension, which is recorded in the court’s

order dated 14.12.2010, came true, when in the fresh (2nd) tender

floated by the respondents, the eligibility criteria contained in clause

8.1.1.1. in the 1st tender, was significantly changed to ensure its complete

exclusion from the race, so to speak. Given the facts and circumstances

of the case in this matter, the court could come to no other conclusion

but that the respondents. action were malicious, unfair and contrary to

justice and equity. We may only note here that at the request of Mr

Dhankar, Mr Chandhiok, learned ASG had accorded an opportunity to

the petitioner to inspect briefly, RGPPL’s record in court; based on

which Mr Dhankar brought to our notice, a significant fact, which is that

on 17.09.2010, RGPPL had received a copy of the completion report

dated 09.08.2005 from the concerned authorities i.e., Deputy Chief

Engineer–IV, which clearly indicated that the breakwater work (i.e., the

qualifying work) at Mus Car Nicobar Island had been constructed and

completed. Mr Dhankar submitted that RGPPL, while issuing its

communication on 20.09.2010 to GAIL, called upon it to submit its

recommendation (and not simply forward that which EIL had given vide

its communication dated 01.09.2010) – which ordinarily would have

meant that it wanted its independent input on the issue at hand; and

therefore, in order to ascertain its view, it ought to give every material

it had at hand, including the completion report dated 17.09.2010, if its

action were not motivated. Mr Dhankar submitted that otherwise, all this

while, RGPPL had been furnishing documents to GAIL to opine on the

matter, however, this crucial document had been withheld by RGPPL

because by this time, it had already received an opinion which it was so

desperately seeking, which was the ouster of RDS.

24. On behalf of GAIL, Mr Gaurab Banerji took us through a series

of documents and correspondence which had been exchanged amongst

the parties on the aspect pertaining to the qualifying work and its impact

on the eligibility of RDS. Mr Banerji laid special emphasis on the fact that

the RDS had made a misrepresentation, in as much as, in its bid document

filed in respect of the 1st tender against query no. 6, it had stated that

it had executed a breakwater of total length of 500 metres at Mus Car

Nicobar Island; the milestone dates being:- date of award – November,

2000; commencement of work – November, 2000; the scheduled date of

completion – June, 2003; and lastly, the actual date of completion – June,

2003. According to the learned ASG, the said information given in the

aforementioned document by RDS had been confirmed against query

no.10 raised in the very same document. Mr Banerji submitted that by

way of evidence, the only proof that RDS provided to establish the

veracity of the said information concerning qualifying work, was the

certificate of the Government of India, Ministry of Shipping, Roadways

and Highways dated 05.04.2008. Since the material collected by RGPPL

demonstrated that the qualifying work had in fact commenced in 1995,

and that it got concluded in 2003, demonstrated that RDS had

misrepresented facts which led both GAIL and EIL into believing that the

RDS was eligible. Mr Banerji laid stress on the fact that the contract in

issue, i.e, the 2nd tender envisaged execution of the work in three (3)

years. He submitted that if petitioner had taken eight (8) years to complete

a breakwater of 500 metre length then both the experts, i.e., GAIL and

EIL including the owner had the right to review their decision and cancel

the contract as under the 2nd tender, a successful bidder would be

required to construct a breakwater of 1800 m length in thirty three (33)

months. Mr Banerji submitted that, the given the facts and circumstances

of the case and the documents on record, it could not be said that

respondents have taken a decision with the malicious intent or, that it


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was unfair and arbitrary.

25. Mr Mathur, in his brief submissions, dittoed the arguments of

Mr Banerji. As indicated above, Mr Mathur had very little to say on the

change of opinion of EIL between 11.08.2010 and 01.09.2010. The

reason for the opinion; which is also noticed by us above, was the

opinion obtained from the legal department of EIL.

26. Mr Chandhiok, learned ASG appearing for the RGPPL argued

that under clause 28.1 of the IFB read with clause 19, RGPPL as the

owner was entitled to cancel the 1st tender. Mr Chandhiok submitted that

under clause 9 of the ITB the owner was entitled to seek additional

information from the bidders. It was his case that this information was

sought from time to time from RDS through the aegis of owners.

engineers, who in turn prevailed upon EIL to seek this information.

Despite, several communications beginning from March, 2010, the said

information was not made available by RDS. RGPPL had to obtain the

information from various sources, including the RTI route. It was the

information which RGPPL had gathered, i.e., the CAG Report, and the

information available on the website of Andaman Harbour Works, which

gave a clue to the fact that RDS had neither constructed entire 500

metres of the qualifying work, purportedly executed at Mus Car Nicobar

Island, nor had it been executed under one single contract in a single

phase, as was the requirement of clause 8.1.1.1 of the 1st tender. It was

Mr Chandhiok’s submission that, given this misrepresentation, RGPPL as

the owner, in public interest, was entitled to cancel the 1st tender. Mr

Chandhiok raised certain issues on the “maintainability” of the reliefs

sought in the writ petition. In this regard, Mr Chandhiok drew our

attention to the reliefs claimed by RDS whereby it sought a direction

from this court to quash the decision taken by RGPPL’s board of directors

on 04.10.2010, cancelling the 1st tender. Learned ASG submitted that

this relief could not be sought by RDS, in the present writ petition, in

view of the fact that RDS had withdrawn its earlier writ petition, i.e.,

WP(C) No. 8252/2010 without seeking liberty to file a fresh writ petition

to challenge the very same decision. In order to buttress this submission,

Mr Chandhiok submitted that, at best, RDS could seek to challenge the

2nd tender by way of the present writ petition, wherein allegation made

is that the petitioner was wrongfully excluded. It was the ASG’s

submission that liberty sought and granted by this court by its order

dated 14.12.2010 was of a limited nature. In order to buttress his

submission, learned ASG referred to an application bearing no. 13791/

2010 dated 07.10.2010, filed by RGPPL, in the writ petition filed by

Ranjit Buildcon Ltd. [WP(C) No. 2142/2010]. Learned ASG referred to

paragraphs 3, 5, 6, 7 & 10 of the said application. Based on the assertion

made therein, wherein broadly, it has been stated that RDS had been

declared ineligible for failure to meet the qualifying criteria – Mr Chandhiok

submitted that a Division Bench (which included one of us i.e., Sanjay

Kishan Kaul, J) of this Court had by an order dated 30.11.2010 dismissed

the writ petition as withdrawn. Mr Chandhiok submitted that even though

the application contained allegations against RDS, (which was impleaded

as respondent no. 2 in the said writ petition), no caveats were entered

by RDS when it came up for hearing. For all these reasons, it was Mr

Chandhiok’s submission that RDS is neither entitled to assail the decision

of RGPPL dated 04.10.2010 nor could it seek a writ of mandamus

calling upon RGPPL to award the contract in its favour.

27. On behalf of UOI, Mr Neeraj Choudhary adverted to only the

averments made in the counter affidavit filed by the UOI.

REASONS

28. Having heard the learned counsel for the parties and facts

noticed hereinabove, it is quite clear that after RDS was declared as L-

1, a concerted attempt was made to oust the RDS. Under the terms of

the 1st tender, the job of evaluating the eligibility of the bidders was that

of EIL. EIL made its recommendations, as regards techno-commercial

qualification of RDS and that of three (3) other bidders, as far back as,

24.12.2009. GAIL, after evaluating EIL’s recommendation sought its

opinion on the technology that RDS would use for loading out and

placement of rock armour. GAIL insisted, that EIL should get the back-

up consultant, i.e., Scott Wilson, U.K to opine on the matter. EIL did the

needful and forwarded an addendum in that regard generated by Scott

Wilson, U.K. to its report on 29.01.2010. This cleared the way for

opening the price bid. It is not disputed, as it cannot be, that the price

bid under the tender conditions (i.e., the 1st tender) could only been

opened in respect of those bidders who were considered to be techno-

commercially qualified. On 10.02.2010, GAIL gave its approval to EIL

to open the price bid of the four (4) bidders who had qualified the

techno-commercial round. Ranjit Buildcon Ltd., which had been


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disqualified in the techno commercial round, stood aggrieved in the

meanwhile. On 11.02.2010, when price bids were opened, it was

undisputedly found that RDS was the lowest bidder at Rs 390 crores

(approximately). It is also not in dispute that the difference between the

next lowest bidder, which was Afcons Infrastructure, is a sum of Rs

160 crores (approximately). The EIL conveyed its award recommendation

to GAIL vide its letter dated 26.02.2010. GAIL in turn forwarded its

award recommendation, (after due examination of the award

recommendation of EIL) on 08.03.2010. Mr M.B. Gohil, on behalf of

GAIL communicated that recommendation. RGPPL, it appears was not

happy with this state of affairs. RGPPL raised various queries by its

letter dated 22.03.2010; to which we have already made a reference.

This was followed by a series of letter dated 09.04.2010, 26.05.2010 and

26.07.2010. In between, RGPPL had obtained a CAG report no. 2/2002.

A perusal of RGPPL’s record would show that on 14.05.2010 it had

written to CAG that it had downloaded its audit report no.2/2002 with

respect to construction of breakwater at Mus Car Nicobar Island and

that it be given a certified copy of the same alongwith any additional

record with regard to the same. The CAG obliged evidently vide its letter

dated 17.05.2010 by forwarding a copy of its report no.2/2002. What is

not known is when did RGPPL for the first time download a copy of

the report from the website despite the fact that the matter had been

hanging fire since 08.03.2010. More pertinently, these letters are not

referred to in the affidavit filed by RGPPL. It evidently, also became wise

to the information available on the website of the Andaman Harbour

Works, which indicated that the qualifying work at Mus Car Nicobar

Island, which the RDS claimed as its experience in executing the instant

work, was only of a length ad-measuring 490 metres. GAIL, at the

insistence of RGPPL, conveyed this information to EIL. It is pertinent to

note that, keeping in mind the information that RGPPL had, it called upon

GAIL to obtain the work order issued in respect of breakwater evidently

constructed by RDS at Mus Car Nicobar Island. Other queries were also

raised (to which we have made a reference above) by RGPPL, in its

letter dated 08.06.2010. In the interregnum, RGPPL had also received a

letter from the Deputy Chief Engineer – IV, Andaman Harbour Works

dated 05.06.2010. This letter of Deputy Chief Engineer – IV Andaman

Harbour Works was also forwarded for consideration of the EIL.

Sh.R.K.Bhandari, on behalf of EIL, in his letter dated 10.06.2010 remained

firm on his stand that the material placed before him, which included

CAG’s report number 2/2002 as also the letter of the Deputy Chief

Engineer –IV, Andaman Harbour Works dated 05.06.2010, did not require

a revision in EIL’s award recommendation qua RDS. Not being satisfied,

RGPPL by a letter dated 15.06.2010 issued a missive to GAIL, in which

it inter alia observed therein for the first time [after nearly three (3)

months] that its initial recommendation of 08.03.2010 was conditional.

GAIL, in the meanwhile, also sought the opinion of the Attorney General

on the issue raised by RGPPL that since work at Mus Nicobar had been

awarded to EHL could it be said that RDS had executed the work as, it

was only a sub-contractor, and therefore did it come within the ambit of

the expression “single bidder”. The Attorney General, however, to the

misfortune of RGPPL as it would appear, clearly opined that RDS was

eligible and fell within the meaning of the expression ‘single bidder’. The

rationale broadly given was that even though qualifying work had been

awarded to EHL, it did not have the necessary wherewithal, the work

having been executed by RDS, it could not be said that it was sub-

contractor. It may, however, be pertinent to emphasis the fact that the

query put to the learned Attorney General was restricted to whether RDS

could be considered a sub-contractor in view of the fact that the works

had been awarded by the Government of India to EHL.

28.1 The point to be taken note of is, that even though opinion of

the learned Attorney General was sought on 08.06.2010 when the CAG

report of 2002/or at least letter dated 05.06.2010 issued Deputy Chief

Engineer-IV, Andaman Harbour Works was available, no query was raised

about the eligibility of RDS in the context of the fact that the qualifying

work had been executed at Mus Car Nicobar Island in two (2) phases

under two (2) contracts. The query to the learned AG was confined to

whether RDS fit the bill of a ‘single bidder’.

29. RGPPL even at this stage did not let the matter lie. It evidently

collected material through the RTI route by making an application in that

regard with the Andaman Harbour Works. The information obtained was

transmitted to GAIL, under the cover of its letter dated 26.06.2010. EIL

once again was called upon to give its recommendation. EIL, by an email

dated 11.08.2010, after a critical review, came to the conclusion that, the

mere fact that the qualifying work at Mus Car Nicobar Island had been

carried out in two (2) phases, it could not be said that RDS was not a


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single bidder. EIL stuck to its decision that no revision in the award

recommendation was necessitated at this stage. Then of course, came

the internal meeting of EIL – as to when it was held is not disclosed in

the additional affidavit filed. The affidavit does not advert to the fact as

to who all participated in this internal meeting. At the internal meeting,

the matter was evidently referred to the legal department of EIL. The

legal department gave an opinion on 26.08.2010, stating therein that

principle of strict construction had to be applied to the contract documents,

and on application of the said principle it had to be concluded that RDS

had not fulfilled the BQC requirement stipulated in the tender, (i.e. the 1st

tender), however, “harsh” or “absurd” such conclusion may be. It was

submitted before us that this opinion became the edifice for the change

of view that the EIL took on 01.9.2010. We may note at the outset that

the opinion is completely converse to the stand taken by the EIL up to

11.08.2010. It is pertinent to note (a fact we were told in the hearing)

that the said legal opinion bears the endorsement of Mr.Grover, Director

(Projects) calling upon Mr.R.K.Bhandari, General Manager (Project), EIL

to simply comply with the view taken by the legal department. As noticed

here in above by us, Mr.R.K.Bhandari was the same gentleman, who on

10.06.2010 had opined that no revision in the award recommendation in

favour of RDS was called for. The crucial question which arises, is that,

was Mr.R.K.Bhandari given a chance to express his view on the opinion

rendered by the legal department. This is a pertinent aspect of matter to

our minds since Mr.R.K.Bhandari, followed by Mr. Ravi Saxena, in EIL

and, Mr.M.B.Gohil in GAIL, were people who would have dealt with

such like contract on a number of occasions. Being experts in their

respective fields, they would know what was intended when terms like

“single project” and “single bidder” were put in Clause 8.1.1.1. Therefore,

for the legal department of EIL to take a contrary, though “absurd” and

“harsh” view, required at least a modicum of response from the expert,

which was none other than Mr.R.K.Bhandari dealing with the issue till

10.06.2010. Mr.Grover Director (Projects) did not deem it fit to even ask

for his comments. Therefore, the integrity of entire process is suspect

to say the least. In any event, in our view, the opinion is completely

contrary to the plain language of clause 8.1.1.1. At this juncture we may

note the relevant provisions of clause 8.1.1.1 as they obtained in the 1st

tender:

“8.1.1.1 The bidder shall have experience of having successfully

completed, as a single bidder or as a leader of a Consortium/

Joint Venture, at least one project of a breakwater in an offshore

location (as defined at clause No. 8.1.2.5 below) of minimum

length of 400 m during the last 20 (twenty) years to be reckoned

from the last date of submission of bids. The scope of work of

the proposed qualifying project work should comprise of the

design, engineering, project management and construction of the

breakwater.”

30. A perusal of the clause would show that a bidder, would have

to have experience of having successfully completed as a single bidder

or as a leader of a consortium at least one project of breakwater of a

minimum length of 400 metre located in an off shore location, during the

last twenty (20) years to be reckoned from the last date of submission

of bids. Plain language of the said clause would show that a project could

be executed in different phases. The ordinary meaning of the word

‘project’ would be “planned undertaking or scheme” (See The Conscise

Oxford Dictionary Ninth Edition, 1995). Therefore, the fact that the

qualifying project at Mus Car Nicobar Island was executed by RDS in

two (2) phases could not have ousted it. In understanding the meaning

of the words and expression used in a contract, courts would ordinarily

go by the meaning given to the words by those who administer and

operate the contract, unless that meaning is completely at variance with

the understanding of a common prudent person. Both the experts, who

dealt with the evaluation of the bids, i.e., GAIL and EIL, despite receipt

of material in the form of CAG report and the Deputy Chief Engineer-

IV, Andaman Harbour Works letter, which indicated that qualifying contract

had been executed in two (2) phases, came to the conclusion that RDS

was eligible and, therefore, the award recommendation did not require a

review. We fail to understand how the legal department could take a

view, on this matter, contrary to what the persons, who operate these

contracts, understood the expression to mean. In a construction of

commercial contract (if one were to assume for a moment that

construction of contract was required to ascertain the intention of parties),

the accepted rule is that if semantic and syntactical construction is at

variance with the business common sense, then it must yield to business

common sense. The observations in Antaios Cia. Naviera S.A. v. Salen

Rederierna A.B. (1985) A.C. 191 been apposite are extracted below:


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“While deprecating the extension of the use of the expression

‘purposive construction’ from the interpretation of statutes to

the interpretation of private contracts, I agree with the passage

I have cited from the arbitrators. award and I take this opportunity

of restating that, if a detailed semantic and syntactical analysis

of words in a commercial contract is going to lead to a conclusion

that flouts business common sense, it must be made to yield to

business common sense.”

30.1 The purpose of construction has been described felicitously

by Lloyd L.J. in The Sounion (1987) 1 Lloyd’s Re. 230 as follows:

“Designed to separate the purposive sheep from the literalist goats.”

30.2 We may note at this stage that we had pointedly put to the

ASG Ms.Indra Jai Singh during the course of hearing, as to whether

there was any doubt or dispute that RDS had not executed the qualifying

work at Mus Car Nicobar Island equivalent to the contracted length of

500 metres. Ms.Indra Jai Singh, on instructions, categorically informed

us that this aspect of the matter was not in issue. She, however, submitted

that what was in issue, was the fact, that since it had now emerged that

RDS had completed the project in two (2) phases; according to EIL, it

was not eligible. With EIL having taken this stand, which was not

contradicted by GAIL at the hearing; it quite surprised us when,

Mr.Chandhiok appearing on behalf of RGPPL took the stand that RDS

had not even constructed the required minimum 400 metres length of the

qualifying work. We may also point out at this stage the stand of the UOI

in its affidavit. UOI has categorically supported its certificate dated

05.04.2008 and the clarification issued on 05.06.2010 by the Deputy

Chief Engineer-IV, Andaman Harbour Works. Therefore, this argument

of RGPPL cannot be accepted.

31. The submission made on behalf of the respondents, in one form

or the other, that there had been a misrepresentation by RDS, in as much

as, in the bid document it had disclosed that the qualifying work had

commenced in 2000 and was completed in 2003, was put by us to Mr

Dhankar. Mr Dhankar informed us that the RDS somehow misconstrued

the information sought in the bid document. On being queried as to why

RDS had withheld the work order, Mr Dhankar submitted that since

most of the records of the Andaman Harbour Works had got swept in

the tsunami of the December, 2004, it had become difficult to recoup the

work order. Mr Dhankar submitted that, nevertheless, the said information

was available with the respondents by July, 2010 and, therefore, they had

every opportunity to examine the effect of the same prior to issuance of

recommendation dated 11.08.2010.

32. Having examined the matter closely, we got a distinct impression

that RGPPL was somehow attempting to find a way around the

recommendation issued by GAIL and EIL. Even though the information

given against the query no. 6 of the bid document filed by RDS was not

completely accurate, it did appear to us that RGPPL had with it the

information that the qualifying work at Mus Car Nicobar Island had

commenced in 1995 and that it was awarded in two (2) phases, under

two (2) separate contracts. This distinct impression we get as the

information with regard to the fact that the qualifying work had been

executed in two (2) phases was available in the CAG report of 2/2002.

Some part of the information was also available on the website of the

Andaman Harbour Works. Therefore, whether the information given

against query no. 6 in the tender documents actually misled RGPPL is,

in the facts and circumstances obtaining in the case, difficult to believe.

Notwithstanding this, the said information lost its materiality in view of

the fact that, the said information was sought to be used by RGPPL only

to say that RDS was not eligible as the qualifying work had been executed

in two (2) phases. The aspect pertaining to the time taken in the execution

of the qualifying the work; was a factor which did not even figure in the

mind of the Evaluator i.e., EIL on 01.09.2010; though Mr.Banerjee true

to his craft had attempted to make this an issue. The fact remains, that

despite this information being available, on review and examination at

length, both GAIL and EIL came to the conclusion that their initial

recommendation of 08.03.2010 did not require a revision. Therefore, for

the EIL to have turned turtle, so to say, on 01.09.2010, based on a legal

opinion generated by its legal department, belies credibility to say the

least. What is interesting, is that, even though GAIL, up to a point took

the stand that in respect of all recommendations qua award of contract

for DPP; RGPPL would have to rely upon on it – it collapsed under the

weight of RGPPL or perhaps threw up its hands in complete frustration,

as it appears after 11.08.2010. This is evident from the fact that after the

EIL’s u-turn on 01.09.2010, GAIL refused to give its own view in the

matter, which it was required to do under the terms and conditions of

the tender. RGPPL sought its recommendation by its letter dated


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20.09.2010, despite which, GAIL refused to do so, as is evident from

its return communication dated 22.09.2010, wherein it called upon RGPPL

to take the decision in its capacity as the owner in view of the fact that

the entire material was available with it. We have no doubt in our minds

that in this background, the decision taken at the Board of Directors.

meeting of RGPPL on 04.10.2010 was pregnant with malice, and that it

had been taken for considerations other than those which are in accord

with good conscious, equity and fairness. The new clause (which is the

amended version of clause 8.1.1.1 obtaining in the 1st tender) was

undoubtedly introduced in the fresh tender, (i.e., the 2nd tender), to

completely oust RDS. For the sake of convenience the amended clause

is extracted hereinbelow:

“8.1.1.1 The bidder must have completed in a single contract, as

a single bidder or as a leader of a consortium, at least one

breakwater (using marine spread – refer Note 1) of minimum

length of 400 m located in sea during the last 20 (twenty) years

to be reckoned from the last date of submission of bids. The

scope of work of the above referred qualifying job should

comprise of design, engineering, construction and project

management of the breakwater. Land connected breakwater having

a minimum length of 400m located in sea is also acceptable

provided construction has been carried out using marine spread

as mentioned above.”

33. A bare perusal would show that the respondents have called for

bids only for those bidders who have completed in a single contract as

a single bidder or as a leader of a consortium/ joint venture one project

of a breakwater, located in sea, of minimum length of 400 metre during

the last twenty (20) years to be reckoned from the last date of submission

of bids. At the end of this amended clause, there is also the insertion of

the following provision “...Land connected breakwater having a minimum

length of 400 metre located in sea is also acceptable provided construction

has been carried out using marine spread...”. 33.1 The respondents know-

fully well that RDS can never apply or be found eligible in respect of the

2nd tender as: the qualifying work which RDS had executed, is a subject

matter of two (2) contracts and not a single contract; and that project

was an offshore project as against one located in sea. The additional

provision of a land connected breakwater which was not an option

available in the 1st tender is, according to RDS, deliberately inserted to

accommodate bidders who missed the bus, so to speak, in the first

round. Since there is no material in respect of the last part, we are not

impressed by the same but it is definitely apparent to us that the words

‘single contract’ as also that the ‘qualifying work should be located in

sea’, have been introduced in the facts and circumstances of the case to

exclude RDS. This is a clear case of malice in law which occurs when

a person or an entity commits a wrongful act intentionally without just

cause or reason. The following observations of Viscount Haldane in

Shearer vs Shield (1914) AC 808 have been cited with approval in

West Bengal State Electricity Board vs Dilip Kumar Ray (2007) 14

SCC 568, para 19 at page 582:

“.... ‘A person who inflicts an injury upon another person in

contravention of the law is not allowed to say that he did so with

an innocent mind; he is taken to know the law, and he must act

within the law. He may, therefore, be guilty of malice in law,

although, so far the state of his mind is concerned, he acts

ignorantly, and in that sense innocently..”

33.2 It is quite apparent that RGPPL exercised its power solely

with the object of achieving a pre-meditated object to the detriment of

the aggrieved party, i.e., the RDS. The action of RGPPL was thus geared

to achieve an “authorized purpose” which in our view could be construed

as malice in law [see R.S. Garg vs State of U.P & Ors. (2006) 6 SCC

430, para 25 at page 448]. That malice in law is an incident or “dimension”

of fair play in action; is now well established [see Mahabir Auto Stores

& Ors. vs Indian Oil Corporation & Ors. (1990) 3 SCC 752, para 13

at page 761].

34. Mr Chandhiok’s submission that RDS could not lay a challenge

to the decision of the Board of Directors of RGPPL dated 04.10.2010

based on a fact that RDS had withdrawn its writ petition [WP(C) 8252/

2010] without liberty to file a fresh writ petition is, according to us,

completely misconceived and untenable. The reason for that is simply the

fact that the court did not adjudicate upon the issues raised in the said

writ petition. It would be important to note that prior to the said writ

petition being filed by RDS, one Ranjit Buildcon Ltd. had filed a writ

petition no. 2142/2010, in which, RGPPL had filed an application, wherein

broadly, it had been averred that the RDS had been declared ineligible in


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respect of the 1st tender for its failure to meet the qualifying criteria. The

said writ petition of Ranjit Buildcon Ltd. was dismissed as withdrawn.

RDS was impleaded as a respondent in this writ petition.

34.1 RDS could have said very little in the matter, the petition being

of Ranjit Buildcon Ltd.. It is for this reason perhaps, that RDS instituted

a separate and independent writ petition being no. 8252/2010 seeking to

challenge essentially the decision of the board of directors of RGPPL

dated 04.10.2010. When it was put to the learned counsel for RDS that

nothing would survive since the tender by itself had been cancelled by

RGPPL in exercise of its powers under Article 28.1 of the said tender,

it withdrew the writ petition with the caveat that if a fresh tender is

floated by RGPPL, it ought to have liberty to have recourse to an

appropriate legal remedy, in accordance with law, to challenge such a

tender if it sought to exclude the RDS. Said liberty was granted by the

court in the order dated 14.12.2010. 34.2 In view of these factors it

could hardly be contended by RGPPL that while seeking to challenge the

amended clause 8.1.1.1 (now inserted in the 2nd tender) that RDS could

not demonstrate that the decision arrived at by RGPPL’s board of directors

on 04.10.2010 is fraught with malice in law and was otherwise contrary

to the principles of fairness, equity and good conscience. The submissions

of Mr Chandhiok on this count, in our view, are also without merit.

35. Given the aforesaid, in our view, we have no hesitation in

moulding prayer (A) in the writ petition and declaring that the amended

clause 8.1.1.1 (inserted in the 2nd tender) in the given facts and

circumstances of this case is bad in law. Similarly, for the reasons given

above, we quash the decision taken by the RGPPL in its board of directors.

meeting held on 04.10.2010, whereby the bid of RDS in the 1st tender

was rejected and the bidding process in the 1st tender was annulled. This

would really mean that RGPPL would have to revisit the issue in the light

of observations made by us hereinabove. It would, while doing so, bear

in mind the fact that the GAIL has not given its opinion in the matter –

which it is required to render, given the fact that it is the owner’s

engineer.

36. This brings us to the last relief sought in the writ petition

seeking a direction against RGPPL to formalize award of contract in

favour of RDS in respect of DPP. We are afraid that we cannot grant

this relief for the reason that over the years the courts have demarcated

certain boundaries for itself which includes not issuing directions to the

States and its instrumentalities to award contracts in favour of one or the

other party, however, aggrieved that party may be. It appears to us this

may at times seem frustrating to a litigant. At the end of day the litigant

wants, and rightly so, the fruits of litigation. It is no relief to the petitioner

to get, in a manner of speaking, a certificate from the court that the

actions of the respondents are illegal or invalid in law, but then being told

that an appropriate direction to do justice in the matter would flow finally

from the respondent state. It appears to us the reason and the rationale

for this is that the State and its instrumentalities at the end of the day,

it is believed have the interest of the republic in mind. It is believed that

having erred, once the State would correct its course. The State or its

instrumentalities cannot but act in the interest of the republic. Whether

they do so or not is ordinarily left to those who govern them. We say

no more but leave it to the conscious of the superior officers and the

members of the Board of Directors. of the respondents, i.e., RGPPL,

GAIL and EIL to take a decision in accordance with fairness, equity and

justice keeping the interest of the State in mind. While taking the said

decision, it would be wise to revisit the entire issue including the fact that

the RDS has offered a price which is Rs 160 crores less than that of

Afcons Infrastructure (i.e., L-2); and that despite queries being raised

that this was below the estimated cost of Rs 662 crores, both experts

in the field had granted its approval to the bid of RDS.

37. Before we part, we may also observe that we had directed both

parties to file their respective bill of cost. The bill of costs filed on behalf

of the RDS suggests that they have incurred on counsels. fee a sum of

Rs.33,22,000/-. Since RDS has succeeded to a large extent, we direct

payment of 3/4th of the costs in its favour. The three respondents, i.e.,

RGPPL, GAIL and EIL shall pay a sum of Rs.24,91,500/- to RDS by

way of cost in equal proportion. With the aforesaid observations the

petition is disposed of.


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527 528 Daya Ram Verma v. Securities & Exchange Board of India (Mukta Gupta, J.)


CRL. M.C & M.A.

DAYA RAM VERMA & ORS. ....PETITIONER

VERSUS

SECURITIES & EXCHANGE BOARD OF INDIA ....RESPONDENT

(MUKTA GUPTA, J.)

CRL. M.C. NO. : 766/2010 DATE OF DECISION: 18.10.2011

& CRL. M.A. NO. : 2778/2010

(A) Constitution of India, 1950—Article 227—Securities and

Exchange Board of India Act, 1992—Sections 24 (1)

and 27 Respondant filed a complaint before Ld. CMM

for the offence under Section 24(1) and 27 of the Act

against M/s. Master Green Forest Ltd—Allegations

that accused company was operating collective

investment scheme—Raised huge amount from

General Public in contravention of the Act and

Regulation—There were allegations against the

promoters/Directions and the persons responsible for

the day to day affairs of the company, who actively

connived with each other in the commission of

offence—Only company was arrayed as an accused—

ld. ACMM vide its order dated 15th December 2003

observed—Perusal of the complaint discloses

commission of offence Punishable under Section 24

(1) and 27 of the Act and accordingly, all the accused

be summoned for 21 February 2004—Petitioners filed

the present petition seeking quashing of the

proceedings pending against them—Petitioners

contended—Petitioners were not arrayed as accused—

No summons were issued to them vide order dated

15.12.2003—In the garb of filing fresh addresses of

accused, complainant filed the list of the directors—

Trial Court issued the summons without application of

mind—As no summons were issued at the first instance,

petitioner should not have been summoned as

directors except as provided under Section 319

Cr.P.C—Respondent contended that no case for

quashing is made out—Ingredients in the complaint

discloses commission of cognizable offence against

petitioners also—Held—Indubitably, the Court takes

cognizance of the offence and not the offenders—No

doubt in the memo of parties filed along with the

complaint only the company was made an accused

however, perusal of the order dated 15th December,

2003 summoning the accused shows that the Learned

ACMM has used the word “accordingly all the accused

be summoned for 21st February, 2004” the use of

these words show that the Learned ACMM was

conscious of the fact that besides the accused

company i.e M/s. Master Green Forest Limited there

were other accused also—Further the complaint clearly

stated that the Directors and Promoters of the company

who were the persons in-charge and responsible for

the day-to-day affairs of the Company and all of them

actively connived with each other for the commission

of the offence—Thus, the role of promoters and

Directors was specifically mentioned in the complaint—

It was further mentioned that accused company and

its promoters and Director in-charge and responstble

to the accused company for the conduct of its business

were liable for the violations of the accused company

as provided under Section 27 of the SEBI Act—

Thereafter opportunities were giving to Respondent

to furnish the details so that process could be issued

aganist the accused—Thus, it is not as if all of a

sudden vide the order dated 13th October, 2006 the

accused were summoned. In view of the facts of the

present case the contention of the Petitioner that the

summons having not been issued in the first instance

by the Learned magistrate, the Learned Additional


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Sessions Judge could not have issued the summons

unless the stage under Section 319 Cr.P.C. was arrived

at, deserves to be rejected.

I have heard learned counsel for the parties and perused

the records. Indubitably, the Court takes cognizance of the

offence and not the offenders. No doubt in the memo of

parties filed along with the complaint only the company was

made an accused however, perusal of the order dated 15th

December, 2003 summoning the accused shows that the

Learned ACMM has used the word “accordingly all the

accused be summoned for 21st February, 2004”. The use

of these words show that the Learned ACMM was conscious

of the fact that besides the accused company i.e. M/s.

Master Green Forest Limited there were other accused also.

Further the complaint clearly stated that the Directors and

promoters of the company who were the persons in-charge

and responsible for the day-to-day affairs of the company

and all of them actively connived with each other for the

commission of the offence. Thus, the role of the promoters

and Directors was specifically mentioned in the complaint. It

was further mentioned that the accused company and its

promoters and Directors in-charge and responsible to the

accused company for the conduct of its business were liable

for the violations of the accused company as provided

under Section 27 of the SEBI Act. Thereafter opportunities

were given to the Respondent to furnish the details so that

process could be issued against the accused. Thus, it is not

as if all of a sudden vide the order dated 13th October,

2006 the accused were summoned. In view of the facts of

the present case the contention of the Petitioner that the

summons having not been issued in the first instance by the

Learned Magistrate, the Learned Additional Sessions Judge

could not have issued the summons unless the stage under

Section 319 Cr.P.C. was arrived at deserves to be rejected.

Thus, the reliance of the Petitioner on Ranjit Singh (supra)

is wholly misconceived. (Para 6)

(B) Constitution of India, 1950—Article 227—Securities and

Exchange Board of India Act, 1992—Sections 24 (1)

and 27—Respondent filed a coomplaint before Ld.

CMM for the offence under Sections 24(1) and 27 of

the Act against M/s Master Green Forest Ltd—

Allegations that accused company was operating

collective investment scheme—Raised huge amount

from General Public in contravention of Act and

Regulations—There were allegations against the

promoters/Directions and the persons responsible for

the day to day affairs of the company, who actively

connived with each other in the commission of

offence—Only company was arrayed as an accused—

Ld. ACMM vide its order dated 15th December 2003

observed—Perusal of the complaint discloses

commission of offence punishable under Section 24(1)

and 27 of the Act and accordingly, all the accused be

summoned for 21 February 2004—Petitioners filed the

present petition seeking quashing of the proceedings

pending against them—Petitioners Contended—No

specific role is assigned to them in the complaint—

Merely stating that all the Directors and promoters

connived with each other and were in-charge and

responsible for the day-to day functioning of the

company cannot fasten the vicarious liability on the

petitioners—Respondent contended that no case for

quashing is made out—Ingredients in the comlaint

disclose commission of cognizable offence—Held—

Complaint clearly stated that the promoters and

Directors of the Company in-charge and responsible

for the conduct of its affairs have connived with each

other and have committed the offence—In the present

case the offence alleged is of running a collective

investment scheme contrary to the provisions of SEBI

Act and Regulations—No doubt Section 27 of SEBI Act

makes responsible all other Directors of the company

who are responsible and in-charge of the day-to day



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number of people can be involved and this is the

allegation of the Respondent in the complaint. Thus, I

find no merit in the contention that even on the facts

of the present case no case for proceeding aganist

the Petitioners are made out.

Regarding the issue whether the complaint discloses sufficient

evidence against the Petitioners or not, it may be noted that

as reproduced above the complaint clearly states that the

promoters and Directors of the company in-charge and


each other and have committed the offence. In K.K. Ahuja

vs. V.K. Vora and another, vs. 2009 (10) SCC 48 it was

held:

“27. The position under Section 141 of the Negotiable

Instruments Act, 1881 can be summarized thus:

(i) If the accused is the Managing Director or a Joint

Managing Director, it is not necessary to make an

averment in the complaint that he is in charge of, and

is responsible to the company, for the conduct of the

business of the company. It is sufficient if an averment

is made that the accused was the Managing Director

or Joint Managing Director at the relevant time. This

is because the prefix Managing to the word Director

makes it clear that they were in charge of and are

responsible to the company, for the conduct of the

business of the company.

(ii) In the case of a director or an officer of the

company who signed the cheque on behalf of the

company, there is no need to make a specific averment

that he was in charge of and was responsible to the

company, for the conduct of the business of the

company or make any specific allegation about

consent, connivance or negligence. The very fact that

the dishonoured cheque was signed by him on behalf

of the company, would give rise to responsibility

under sub-section (2) of Section 141.

(iii) In the case of a Director, Secretary or Manager

(as defined in Section 2 (24) of the Companies Act)

or a person referred to in Clauses (e) and (f) of

Section 5 of Companies Act, an averment in the

complaint that he was in-charge of, and was

responsible to the company, for the conduct of the

business of the company is necessary to bring the

case under Section 141 (1). No further averment

would be necessary in the complaint, though some

particulars will be desirable. They can also be made

liable under Section 141 (2) by making necessary

averments relating to consent and connivance or

negligence, in the complaint, to bring the matter

under that sub-section.

(iv) Other officers of a company cannot be made

liable under sub-section (1) of Section 141. Other

officers of a company can be made liable only under

sub-section (2) of Section 141, be averring in the

complaint their position and duties in the company

and their role in regard to the issue and dishonour of

the cheque, disclosing consent, connivance or

negligence.” (Para 7)

In the present case the offence alleged is of running a

collective investment scheme contrary to the provisions of

SEBI Act and Regulations. No doubt Section 27 of the SEBI

Act makes responsible all other Directors of the company

who are responsible and in-charge of the day-to-day affairs

of the company, however in a case of conspiracy number of

people can be involved and this is the allegation of the

Respondent in the complaint. Thus, I find no merit in the

contention that even on the facts of the present case no

case for proceeding against the Petitioners are made out.

(Para 8)

[Vi Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. Joginder Sukhija, Advocate.


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FOR THE RESPONDENTS : Mr. Sanjay Mann, Advocate.

CASES REFERRED TO:

1. National Small Industries Corp. Ltd. vs. Harmeet Singh

Paintal & Anr. 2010 (2) J.T. 161.

2. K.K. Ahuja vs. V.K. Vora and another, 2009 (10) SCC

48.

3. H.R. Kapoor vs. SEBI 2008 Crl.L.J. 4632.

4. Panther Fincap and Management Services Ltd. and Ors.

vs. SEBI, MANU/DE/9208/2006.

5. G.D. Goyal vs. State Crl.M.C. 4575/2005.

6. Rajesh Bagga vs. State & Anr. 2005 (124) DLT 312.

7. Charanjit Singh vs. D.B. Merchant Banking Services Ltd.

1 (2002) BC 489.

8. Ranjit Singh vs. State of Punjab (1998) 7 SCC 149.

9. MCD vs. Ram Krishna Rotagi, 1983 (1) SCC 1.

10. Raghuvansh Dubey vs. State of Bihar, AIR 1967 SC

1167.

RESULT: Petition and applications dismissed.

MUKTA GUPTA, J.

1. The Respondents filed a complaint before the Learned CMM, Tis

Hazari for offences punishable under Section 24(1) and 27 of the Securities

and Exchange Board of India Act, 1992 (in short SEBI Act) against M/

s. Master Green Forest Ltd. In the complaint it was alleged that the

accused company was operating collective investment scheme and raised

a huge amount from the general public in contravention with the SEBI

Act and Regulations. Besides the allegations against the company, the

allegations against its Directors and promoters who were not arrayed as

an accused were that the accused through its promoters/Directors who

are the persons in-charge and responsible for the day-to-day affairs of

the company and all of who actively connived with each other for the

commission of the offence. In Para 20 it was further alleged that the

accused company and its promoters and Directors in-charge and

responsible to the accused company for the conduct of its business were

liable for the violation of the accused company as provided under Section

27 of the SEBI Act. On the said complaint being filed only arraying the

company as an accused, Learned ACMM vide its order dated 15th

December, 2003 observed that the perusal of the complaint discloses

commission of offence punishable under Section 24 (1) and 27 of the

SEBI Act and accordingly all the accused be summoned for 21st February,

2004 and therefore, on 23rd August, 2004 when the process was not

returned back, fresh summons were issued.

2. On 31st January, 2005 the case was listed before the Learned

Additional District and Sessions Judge on transfer in view of the

administrative orders passed by this Court. Again since process was not

received back, fresh summons were issued against the accused persons.

On 15th April, 2005 SEBI was granted an opportunity to furnish the

complete details of the accused for enabling the Court to summon the

accused and the matter was fixed for 9th September, 2005. However,

complete details were not furnished and thus the matter was again adjourned

on the 9th September, 2005 and 9th December, 2005. On 10th March,

2006 the complainant submitted to the Court that on account of

computerization of the ROC report no details have been supplied as yet

to the SEBI. Thus, the matter was adjourned to 26th May, 2006 for

further proceedings. Despite all this particulars were not furnished when

last opportunity was granted to the Complainant on 13th October, 2006

for furnishing particulars and it was directed that the accused be summoned

for 1st December, 2006 for appearance. On this date a list was filed

naming the Petitioners as the Directors of the said company. It is against

this order summoning the Petitioners and framing notices under Section

251 Cr.P.C. that the Petitioners are before this Court seeking quashing

of the proceedings pending against the Petitioners and the complaint in

the complaint case titled SEBI Vs. M/s. Master Green Forest Limited

being complaint case No. 1250/2003.

3. Learned counsel for the Petitioner contends that the Petitioners

were not arrayed as an accused and no summons were issued to them

vide order dated 15th December, 2003. It is in the garb of filing the fresh

address of the accused that the complainant filed the list of the Directors,

shareholders etc. and got them summoned. There is no application of

mind by the Learned Trial Court while issuing summons against the

Petitioners. Further, since no summons were issued in the first instance


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the Petitioners could not have been summoned as Director except as

provided under Section 319 Cr.P.C. Reliance is placed on Ranjit Singh

Vs. State of Punjab (1998) 7 SCC 149.

4. It is further contended that even as per the complaint no specific

role has been assigned to the Petitioners. Merely stating that all the

Directors and promoters connived with each other and were in-charge

and responsible for the day-to-day functioning of the company cannot

fasten the vicarious liability on the Petitioners, there being no specific

allegations against the Petitioners. Reliance in this regard is placed on

National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal &

Anr. 2010 (2) J.T. 161; G.D. Goyal Vs. State Crl.M.C. 4575/2005

decided by this Court on 22.05.2007; Rajesh Bagga Vs. State & Anr.

2005 (124) DLT 312; Charanjit Singh Vs. D.B. Merchant Banking

Services Ltd. 1 (2002) BC 489 to contend that only on specific allegations

being raised, the Petitioners could have been summoned and not merely

by virtue of their being the Directors of the accused company.

5. Learned counsel for the Respondent on the other hand contends

that it is well settled legal proposition that the Magistrate takes cognizance

of the offence and not the offences. Reliance is placed on Raghuvansh

Dubey vs. State of Bihar, AIR 1967 SC 1167 to contend that there

were specific averments in the complaint regarding the Directors and

promoters and that is why they were summoned as the accused vide the

order dated 15th December, 2003. However, since details were not

available with the Respondents time was granted by the Learned Trial

Court to furnish the details i.e. the names and addresses of the accused.

The present is not a case where the committal proceedings took place

before the Learned Additional Sessions Judge. The Learned Additional

Sessions Judge was acting as a Court of original jurisdiction because this

Court in exercise of its administrative powers had directed that all

complaints of SEBI will be tried by the Learned Additional Sessions

Judges. Thus, the Learned Additional Sessions Judge was competent to

summon the Petitioners as accused and the issuance of process by the

Learned Additional Sessions Judge was not without jurisdiction. Reliance

is placed on Panther Fincap and Management Services Ltd. and Ors.

Vs. SEBI, MANU/DE/9208/2006. Reliance is further placed on H.R.

Kapoor Vs. SEBI 2008 Crl.L.J. 4632 to contend that under Section 27

of the SEBI Act every person, who at the time when the offence was

committed was in-charge and was responsible to the company for the

conduct of the business of the company, as well as the company shall

be deemed to be guilty of the said offence and shall be liable to be

proceeded against. The decisions relied by the learned counsel for the

Petitioner relate to the offences under Section 138 read with Section 141

of the Negotiable Instruments Act unlike Section 27 of the SEBI Act.

Reliance is also placed on MCD Vs. Ram Krishna Rotagi, 1983 (1)

SCC 1 to contend that no case for quashing is made out at this stage as

the ingredients in the complaint disclose the commission of a cognizable

offence. It is thus stated that no case for quashing of the proceedings

is made and the petition be dismissed.

6. I have heard learned counsel for the parties and perused the

records. Indubitably, the Court takes cognizance of the offence and not

the offenders. No doubt in the memo of parties filed along with the

complaint only the company was made an accused however, perusal of

the order dated 15th December, 2003 summoning the accused shows

that the Learned ACMM has used the word “accordingly all the accused

be summoned for 21st February, 2004”. The use of these words show

that the Learned ACMM was conscious of the fact that besides the

accused company i.e. M/s. Master Green Forest Limited there were

other accused also. Further the complaint clearly stated that the Directors

and promoters of the company who were the persons in-charge and

responsible for the day-to-day affairs of the company and all of them

actively connived with each other for the commission of the offence.

Thus, the role of the promoters and Directors was specifically mentioned

in the complaint. It was further mentioned that the accused company and

its promoters and Directors in-charge and responsible to the accused

company for the conduct of its business were liable for the violations of

the accused company as provided under Section 27 of the SEBI Act.

Thereafter opportunities were given to the Respondent to furnish the

details so that process could be issued against the accused. Thus, it is

not as if all of a sudden vide the order dated 13th October, 2006 the

accused were summoned. In view of the facts of the present case the

contention of the Petitioner that the summons having not been issued in

the first instance by the Learned Magistrate, the Learned Additional Sessions

Judge could not have issued the summons unless the stage under Section

319 Cr.P.C. was arrived at deserves to be rejected. Thus, the reliance of

the Petitioner on Ranjit Singh (supra) is wholly misconceived.


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7. Regarding the issue whether the complaint discloses sufficient

evidence against the Petitioners or not, it may be noted that as reproduced

above the complaint clearly states that the promoters and Directors of the

company in-charge and responsible for the conduct of its affairs have

connived with each other and have committed the offence. In K.K.

Ahuja vs. V.K. Vora and another, vs. 2009 (10) SCC 48 it was held:

“27. The position under Section 141 of the Negotiable Instruments

Act, 1881 can be summarized thus:

(i) If the accused is the Managing Director or a Joint Managing

Director, it is not necessary to make an averment in the complaint

that he is in charge of, and is responsible to the company, for

the conduct of the business of the company. It is sufficient if

an averment is made that the accused was the Managing Director

or Joint Managing Director at the relevant time. This is because

the prefix Managing to the word Director makes it clear that

they were in charge of and are responsible to the company, for

the conduct of the business of the company.

(ii) In the case of a director or an officer of the company who

signed the cheque on behalf of the company, there is no need to

make a specific averment that he was in charge of and was

responsible to the company, for the conduct of the business of

the company or make any specific allegation about consent,

connivance or negligence. The very fact that the dishonoured

cheque was signed by him on behalf of the company, would give

rise to responsibility under sub-section (2) of Section 141.

(iii) In the case of a Director, Secretary or Manager (as defined

in Section 2 (24) of the Companies Act) or a person referred to

in Clauses (e) and (f) of Section 5 of Companies Act, an averment

in the complaint that he was in-charge of, and was responsible

to the company, for the conduct of the business of the company

is necessary to bring the case under Section 141 (1). No further

averment would be necessary in the complaint, though some

particulars will be desirable. They can also be made liable under

Section 141 (2) by making necessary averments relating to

consent and connivance or negligence, in the complaint, to bring

the matter under that sub-section.

(iv) Other officers of a company cannot be made liable under

sub-section (1) of Section 141. Other officers of a company can

be made liable only under sub-section (2) of Section 141, be

averring in the complaint their position and duties in the company

and their role in regard to the issue and dishonour of the cheque,

disclosing consent, connivance or negligence.”

8. In the present case the offence alleged is of running a collective

investment scheme contrary to the provisions of SEBI Act and Regulations.

No doubt Section 27 of the SEBI Act makes responsible all other Directors

of the company who are responsible and in-charge of the day-to-day

affairs of the company, however in a case of conspiracy number of

people can be involved and this is the allegation of the Respondent in the

complaint. Thus, I find no merit in the contention that even on the facts

of the present case no case for proceeding against the Petitioners are

made out.

Petition and application are dismissed.


CM (M)

SMT. MADHURIKA SHARMA & ORS. ....PETITIONER

VERSUS

SMT. BHAGWATI DEVI SHARMA & ANR. ....RESPONDENT

(INDERMEET KAUR, J.)

CM (M) NO. : 885/2011 DATE OF DECISION: 19.10.2011

Code of Civil Procedure, 1908—Order IX Rule 7—

Application filed ten years after the defendants were

proceeded ex parte—Default explained only on the

ground that the defendants are housewives, who had

engagged a lawyers and were not aware of the


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539 540Madhurika Sharma v. Bhagwati Devi Sharma (Indermeet Kaur, J.)

proceedings—Held, mere engaging the lawyers does

not take away duty of the litigant to prosecute the

case diligently, so trial Court rightly dismissed the


Impugned order suffers from no infirmity; petition is dismissed.

(Para 4)

Important Issue Involved: Mere engaging the lawyer does

not take away duty of the litigant to prosecute the case

diligently.

[Gi Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. Man Mohan Swaroop and Ms.

Sanyogita Swaroop, Advocates.

FOR THE RESPONDENT : None.


INDERMEET KAUR, J. (Oral)

CM No. 14285/2011 (exemption) in CM (M) No. 885/2011

1. Exemption allowed subject to just exceptions.

CM (M) No. 885/2011

2. The order impugned before this court is the order dated

29.03.2011 had dismissed the application filed of the defendants under

Order IX Rule VII of the Code of Civil Procedure (hereinafter referred

to as ‘the Code’). This application had been filed by the defendant Nos.

7, 8, 10 and 11; by way of this application defendant Nos. 7, 8, 10 and

11 had sought setting aside ex parte order dated 05.07.1999. This

application had been filed after about ten years. Contention in this application

is that the applicants/petitioners were housewives and defendant Nos. 7

and 10 are resident of Rajasthan, defendant No. 10 is a resident of

Rohini, Delhi and defendant No. 11 is a resident of UP; The applicants

had engaged Mr. T.C. Gupta for defending their suit. They were not

aware that the suit was not being prosecuted diligently; in fact, an

application had been filed by their advocate Sh. Alok Kumar to set aside

the ex parte order dated 19.02.2008; this was in mistake that the ex parte

order was of 19.02.2008 whereas the ex parte order had been passed

actually on 05.07.1999. It was only after the petitioners have obtained

certified copies of the subsequent orders and engaged another counsel

Sh. Man Mohan Swaroop, these facts came to light; thereafter, the

present application has been filed.

3. The impugned order had noted that there was a gap of about

almost ten years in preferring this application for setting aside ex parte

order which was passed on 05.07.1999. The only defence of the

petitioners is that the petitioners are housewives and they were not aware

of the proceedings; even this is presumed to be a correct fact, it does

not take away the duty which is cast upon a litigant to prosecute his case

diligently. Record shows that as per the statement of the petitioners, they

had engaged three counsel but what did the petitioners do to follow up

their case remained unexplainable and unanswered. A litigant after engaging

a counsel is also supposed to follow up his case with his lawyer; he

cannot be abdicated from his responsibility merely because he has engaged

an advocate. The impugned order had correctly noted that there was no

justifiable reason for this long delay of ten years; the application under

Order IX Rule VII of the Code had accordingly been dismissed. Relevant

would it be to note that on an earlier date i.e. 18.09.2008, an application

under Order IX Rule VII of the Code had been filed which was dismissed

on 12.08.2010; this application had sought to set aside ex parte order

dated 19.02.2008 whereas the record shows that the ex parte order had

been passed on 05.07.1999. Facts have been noted by the trial court in

the correct perspective.

4. Impugned order suffers from no infirmity; petition is dismissed.


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541 542K.R. Builders Pvt. Ltd. v. DDA (Sanjay Kishan Kaul, J.)


EFA (OS)

K.R. BUILDERS PVT. LTD. ....APPELLANT

VERSUS

DDA ....RESPONDENT

(SANJAY KISHAN KAUL & RAJIV SHAKDHER, JJ.)

EFA (OS) NO. : 44/2009 DATE OF DECISION: 20.10.2011

Arbitration Act, 1940 and Arbitration & Conciliation Act,

1996—Applicability—Disputes between the parties

culminated into award dated 12.08.96, wherein money

was awarded in favour of appellant along with interest

from date of award till date of payment or decree,

whichever earlier—Both parties understood that the

award was governed by the Act of 1940 as the

reference was made prior to coming into force of 1996

Act—Appellant filed application under Sec. 14 & 17 of

the 1940 Act, in which Hon’ble Singh Judge vide order

dated 27.05.2002 held that in view of law prevaliling by

way of apex Court judgment, the award enforceable as

decree withoutany application as it is 1996 Act that

was applicable and since no objections were filed

under Sec. 34 of 1996 Act within time, the objections

were dismissed—Neither side challenged order dated

27.05.2002, which became final and the appellant filed

execution proceedings in which respondent on

12.06.2003 paid the awarded money with interest

calculated from date of award till 27.05.2002—

Thereafter, the appellant claimedinterest from


Thereafter, the apex court gave a re-thought to the

then existing legal position, effect where of was that

the award in question was liable to be governed by

the 1940 the Act, under which interest was liable to be

paid only till expiry of 90 days from award, so

respondent under Sec. 151 CPC claimed that interest

paid for period beyond 90 days from date of award till

27.05.2002 was excess payment and liable to be

refunded—Hon’ble Single Judge allowed the

application—Appeal—Held, order dated 27.05.2002 was

based on the then prevalent legal position and since

the respondent did not challenge the said order, the

way others did not to bring about change in legal

position now respondent cannot be allowed to make

grievance and reopen the closed litigation—Also held,

the date of decree remains the same as date of award

but the decree is not enforceable for a period of 90

days in view of Sec.36 of 1996 Act, which is a window

given to the judgment debtor to make payment failing

which rigours of enforecement would come into play,

so interest is liable to be paid till decree is satisfied.

We find that there appears to be some misconception about

the date of the decree. The date of the decree remains the

same as the date of the award. The decree is not enforceable

for a period of 90 days in view of the provisions of Section

36 of the new Act, which reads as under:

“36. Enforcement – Where the time for making an

application to set aside the arbitral award under

Section 34 has expired, or such application having

been made, it has been refused, the award shall be

enforced under the Code of Civil Procedure, 1908 (5

of 1908) in the same manner as if it were a decree of

the court.” (Para 18)

It is this window which was given to the judgment debtor to

make the payment or to challenge the award failing which

the rigours of enforcement would arise. Any other construction

would make it illogical and thus the interest is liable to be

paid till the decree is satisfied. (Para 19)

[Gi Ka]


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543 544K.R. Builders Pvt. Ltd. v. DDA (Sanjay Kishan Kaul, J.)

APPEARANCES:

FOR THE APPELLANT : Mr. Raman Kapur, Sr. Advocate.

with Mr. Aviral Tiwari, Advocate.

FOR THE RESPONDENT : Mr. Arjun Pant, Advocate.

CASES REFERRED TO:

1. Milkfood Ltd. vs. GMC Icecream (P) Ltd.; JT 2004 (4)

SC 393.

2. Shankar Construction Company vs. National Building

Construction Corporation Ltd.; 2003 (3) Arb.L.R.333.

3. S.Kumar vs. Delhi Development Authority; (103) 2003

DLT 502.

4. Thyssen Stahlunion GMBH vs. Steel Authority of India;

(1999) 9 SCC 334.

RESULT: Appeal Allowed.

SANJAY KISHAN KAUL, J. (ORAL)

1. Admit.

2. Learned counsel for the respondent accepts notice.

3. At request of learned counsel for the parties, the appeal is taken

up for final disposal.

4. The appellant is aggrieved by the unsuccessful endeavour of the

respondent to re-open a closed chapter of a satisfied decreed by the

impugned order dated 25.09.2009.

5. The disputes between the parties which were governed by the

arbitration clause resulted in an award in favour of the appellant dated

12.08.1996. The amount awarded was with simple interest at the rate of

16 % per annum from the date of the award till the date of payment or

date of decree, whichever was earlier, on the awarded amount. Both the

parties understood that the award was governed by the Indian Arbitration

Act, 1940 (‘the old Act’ for short) as the reference was made on

01.01.1993 i.e. prior to The Arbitration and Conciliation Act, 1996 (‘the

new Act’) coming into force. Thus, the appellant as a decree holder filed

an application under Sections 14 & 17 of the old Act for filing the award

in court and making it rule of the court. On the filing of the said

application, the award was filed in the court and notice was issued to the

respondent who filed objections under Sections 30 & 33 of the old Act.

The application filed by the appellant and the objections filed by the

respondent were disposed of by the learned single Judge (as he then

was) vide the order dated 27.05.2002 holding that the provisions of the

old Act would not apply and that the award was governed by the provisions

of the new Act. On the basis of this finding, a conclusion was reached

that the exercise of filing an application under Sections 14 & 17 of the

old Act was futile as the award was enforceable as a decree of the court

and since no application had been filed by the respondent under Section

34 of the new Act within the statutory period, there was no valid challenge

to the award and the objections were consequently dismissed. This was

in view of the legal principles enunciated in Thyssen Stahlunion GMBH

v. Steel Authority of India; (1999) 9 SCC 334.

6. The appellant thereafter proceeded to seek execution of the decree

in terms of the award dated 12.08.1996 as none of the parties filed an

appeal against the order dated 27.05.2002 which became final. The

respondent sought to satisfy the decree by making a payment of a sum

of Rs.12,21,856.53/- after deducting the TDS thereon.

7. This payment was made on 12.06.2003 calculating interest at the

rate of 16 % per annum on the awarded amount from the date of the

award till the order was passed on 27.05.2002. The payment was, thus,

made assuming that the order dated 27.05.2002 amounted to a decree as

if the award dated 12.08.1996 was made rule of the court and a decree

had been passed. The aforesaid should have put quietus to the issue, but

the appellant sought to execute the decree for the remaining amount with

interest payable from 27.05.2002 to date of payment. The appellant,

however, gave up this endeavour and withdrew the application for the

said purpose, but in the bargain kindled some thoughts in the minds of

the competent authority of the respondent, who re-examined the issue.

8. The respondent felt that since the award provided for payment

of interest up to the date of the decree or date of payment whichever is

earlier, interest was liable to be paid only till the expiry of 90 days from

the date of the award in view of the provisions of the new Act. This was

in view of the stipulation in the award itself as worded.


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K.R. Builders Pvt. Ltd. v. DDA (Sanjay Kishan Kaul, J.) 545 546

9. The other development which took place was re-thought given

to the legal position by the Supreme Court in Milkfood Ltd.v. GMC

Icecream (P) Ltd.; JT 2004 (4) SC 393 in terms whereof if a reference

was made prior to the new Act coming into force, the award was to be

governed by the old Act unless the parties specifically agreed to have the

proceedings under the new Act (which was not so in the present case)

10. The effect was, thus, that the award in question was liable to

be governed by the old Act, but then the order dated 27.05.2002 had

already become final as none of the parties had challenged the same.

11. The respondent sought to re-open the chapter by filing EA

No.417/2005 setting out the aforesaid facts and claiming that the interest

paid for the period beyond 90 days from the date of the award till

27.05.2002 was the excess amount paid which was liable to be refunded

amounting to Rs.5,27,308/-. This application has been allowed vide the

impugned order.

12. A perusal of the impugned order shows that the learned single

Judge appears to have proceeded on the principle of “double jeopardy”.

Learned single Judge has opined that the respondent suffered on account

of the application moved under Sections 30 & 33 of the old Act being

dismissed as per the then prevalent law which subsequently changed by

pronouncements of the Supreme Court. This was stated to be the “first

jeopardy” to the respondent. The “second jeopardy” was payment made

by the respondent assuming the award to be under the new Act, but

simultaneously making payment of interest up to the date of payment

contrary to the terms of the award. The learned single Judge, thus,

directed refund of the excess payment made.

13. On hearing learned counsel for the parties, we are unable to

agree with the conclusion of the learned single Judge.

14. Insofar as the question as to which of the Acts would govern

the parties, the opinion rendered in the judgment dated 27.05.2002 was

as per the then prevalent position. If the respondent was of the view that

it laid down an incorrect principle of law, nothing prevented the respondent

from filing an appeal. After all, some other parties did contest the matter

and took the matter right till the Supreme Court which resulted in the

judgment in Milkfood Ltd.v. GMC Icecream (P) Ltd’s (supra).

15. The respondent, thus, cannot make a grievance in this behalf

as to accept such a plea would amount to re-opening closed litigations

where both the parties accepted the same, as in the present case.

16. The second aspect arises from the award itself and as to what

nature of direction qua the issue of interest was passed in the award. The

arbitrator had granted interest from the date of the award till date of

payment or date of decree, whichever was earlier. This pre-supposed

that the award was liable to be filed in the court to be made rule of the

court and thus a subsequent date would arise when the decree would be

passed. The arbitrator thus fixed interest to an earlier date assuming that

the court would fix the rate of interest post the decree period. The fact

remains that the award was treated as an award under the new Act. As

to how such an expression has to be understood has been dealt by the

learned single Judge in S.Kumar v. Delhi Development Authority;

(103) 2003 DLT 502 where it was observed in para 7 as under:

“7. In view of the fact that award itself is a decree, the directions

of the Arbitrator that the pendente lite interest shall be paid from

8.4.1998 to the date of payment or date of decree whichever is

earlier actually meant that interest was payable upto date of

payment. Filing of objections by a party under Section 34 and

refusal thereof is of non relevance so far as payment of future

interest is concerned. The application under Section 34 is only

relevant for the purpose of enforcement of the decree. The

moment this application is refused, the decree becomes enforceable

and the date of decree remains the same as that of the award.”

17. A similar view has been taken by another learned single Judge

in Shankar Construction Company v. National Building Construction

Corporation Ltd.; 2003 (3) Arb.L.R.333.

18. We find that there appears to be some misconception about the

date of the decree. The date of the decree remains the same as the date

of the award. The decree is not enforceable for a period of 90 days in

view of the provisions of Section 36 of the new Act, which reads as

under:

“36. Enforcement – Where the time for making an application to

set aside the arbitral award under Section 34 has expired, or

such application having been made, it has been refused, the


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K.R. Builders Pvt. Ltd. v. DDA (Sanjay Kishan Kaul, J.)

award shall be enforced under the Code of Civil Procedure, 1908

(5 of 1908) in the same manner as if it were a decree of the

court.”

19. It is this window which was given to the judgment debtor to

make the payment or to challenge the award failing which the rigours of

enforcement would arise. Any other construction would make it illogical

and thus the interest is liable to be paid till the decree is satisfied.

20. We may also note that even otherwise, the respondent detained

the money payable under the decree and utilized the same and is thus

liable to pay interest.

21. We are of the view that the learned single Judge applied principle

of “double jeopardy” which has no application to the jurisprudence

applicable to such matters.

22. We also cannot lose sight of the fact that not only did the

parties accept the order dated 27.05.2002, but even made payments in

terms thereof and when the appellant sought to enforce the award for the

balance amount from the date of the judgment of 27.05.2002 till date of

payment, it was persuaded to give up the said claim to put a quietus to

the issue. It was, thus, impermissible for the respondent to re-agitate the

issue predicated on the plea that it became wiser after having seen the

application filed by the appellant which he had withdrawn for payment

of such balance interest.

23. We see no reason why this closed chapter ought to have been

permitted to be re-opened by the learned single Judge in execution

proceedings through the process of an application filed under Section

151 of CPC.

24. The impugned order is accordingly set aside and EA No.417/

2005 stands dismissed.

25. The appeal is accordingly allowed leaving the parties to bear

their own costs.

CM No.17947/2009

No directions are required in this application.

The application stands disposed of.

547 548


O.M.P

NATIONAL HIGHWAYS AUTHORITY OF INDIA ....PETITIONER

VERSUS

M/S. BHAGEERATHA ENGINEERING LTD. ....RESPONDENT

(S. MURALIDHAR, J.)

O.M.P. NO. : 310/2011 DATE OF DECISION: 20.10.2011

Arbitration & Conciliation Act, 1996—Section 34—

Limitation—Award dated 20.03.10 aganist Petitioner

pronounced and certified copies sent by the Arbitral

Tribunal by registered post to Petitioner's corporate

office in Delhi, which was the address in the cause

title of proceedings before the Tribunal and also in

the OMP before the Hon’ble High court—Respondent

filed application under Sec. 33(4) of the Act and notice

was served on the counsel for Petitioner on 26.04.10,

so on 17.05.10 counsel for Petitioner appeared before

the Tribunal and claimed that the Petitioner had not

received copy of award, but this contention was

rejected by the Tribunal on 31.05.10 observing that

postal receipts and AD cards were on record—Tribunal

passed amended award on 09.09.10 and again sent

certified copies to the parties by registered post on

01.10.10—Petitioner’s Project Director at Salem wrote

letter requesting for formal copy of amended award,

in reply where of Secretary to the Tribunal informed

having already sent the same, but without prejudice

to rights of parties, another was sent and the same

was received by the Petitioner on 20.12.10—Petition

challenging the award filed on 15.03.11, and as per

Petitioner, the objections are within time—Held, the

memo of parties before the Arbitral Tribunal as well as


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549 550 National Highways Authority of India v. Bhageeratha Eng. Ltd. (S. Muralidhar, J.)

the OMP indicated address of the Petitioner as its

corporate address in Delhi, where the award and the

amended award were sent by registered post by the

Tribunal—In the absence of Petitioner informing any

other address for dispatch of communications, it was

not the duty of the Tribunal to make enquiries about

proper adddress of parties for the purposes of

communications—As such, the Arbitral Tribunal fully

complied with Sec. 31(5) of the Act—Further,

proceedings under Sec. 33 also show that parties

knew about passing of award and Petitioner knew of

sending of award to its Delhi office, but Petitioner

made no efforts to send the same to its Salem office—

Accordingly, Petition held time barred.

The memo of parties in the arbitral proceedings, as is

evident from the first page of the main Award as well as the

amended Award, indicates the address of the NHAI to be its

corporate office at New Delhi. As rightly pointed out by

learned counsel for the Respondent the memo of parties in

the present petition as well as the affidavit in support of the

petition clearly indicates the address of the NHAI to be its

corporate office at New Delhi. In the absence of the NHAI

informing the Tribunal that the proper address for dispatch

of all communications and in particular certified copies of the

Award was its project office at Salem, the Tribunal would

have had no means to know that the copies of the Award

ought not to have been sent to NHAI’s corporate office at

New Delhi. There is an obligation on the parties to a dispute

to inform the forum in which such proceedings are pending

of the correct address to which copies of the Award or

proceedings should be sent. The Arbitral Tribunal is not

required to make enquiries as to the proper address of the

party for the purposes of communication. It has to go by the

address that appears in the memo of parties or cause title

of the case before it. In the present case, therefore, the

Arbitral Tribunal fully complied with the requirement of Section

31 (5) of the Act when it sent the Award as well as the

amended Award to the corporate office of NHAI at New

Delhi. (Para 13)

Important Issue Involved: In the absence of the Petitioner

informing any other address for dispatch of communications,

it was not the duty of the Tribunal to make enquiries about

proper address of parties for the purposes of

communications.

[Gi Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. Sudhir Nandrajog, Senior

Advocate with Ms. Meenakshi Sood

and Mr. Mukesh Kumar, Advocates.

FOR THE RESPONDENT : Mr. Amit George with Ms. Rajshree

Jain, Advocates.

CASES REFERRED TO:

1. National Projects Constructions Corporation Ltd. vs.

Bundela Bandhu Constructions Company AIR 2007 Del

202.

2. Union of India vs. Tecco Trichy Engineers and Contractors

AIR 2005 SC 1832.

RESULT: Petition Dismissed.

S. MURALIDHAR, J.

I.A. No. 6587 of 2011 (for condonation of delay)

For the reasons stated therein, the application is allowed. The delay

in re-filing the petition is condoned.

The application is disposed of.

O.M.P. 310/2011

1. This petition is by the National Highways Authority of India

(‘NHAI’) under Section 34 of the Arbitration and Conciliation Act, 1996

(hereinafter ‘the Act’) challenging an Award dated 20th March 2010

further amended by an Award dated 9th September 2010 passed by the


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Arbitral Tribunal “to the extent it has been held therein under Claim No.

2 that where the quantity executed is less than 75% of the BOQ, the

Claimant is entitled to compensation towards loss of profit due to reduction

in quantity beyond 25% of BOQ and the amount awarded to the Claimant

on that ground by way of the amended Award, as also to the extent that

costs of Rs. 5 lakhs have been imposed against the Applicant and in

favour of the Respondent by the Ld. AT.”

2. At the very first hearing on 27th April 2011, this Court noted the

objection raised by the Respondent claimant, who appeared on advance

notice, that the petition was barred by limitation.

3. The facts relevant for the above purpose are that in the cause

title of the proceedings before the Arbitral Tribunal the address of the

NHAI was that of its corporate office, i.e., G-5 and G-6, Sector 10,

Dwarka, New Delhi-110065. Incidentally, this is the address indicated in

the memo of parties filed with the present O.M.P. No. 310 of 2011. It

appears that after the Award was pronounced by the Arbitral Tribunal on

20th March 2011 certified copies thereof were sent by registered post by

the Arbitral Tribunal to both parties, i.e. the NHAI as well as the Respondent

claimant, to their respective addresses as appearing in the cause title of

the case in the arbitral proceedings.

4. The Respondent filed an application before the Arbitral Tribunal

thereafter under Section 33(4) of the Act. Notice on the said application

was served on counsel for the NHAI on or around 26th April 2010. On

17th May 2010 counsel for the NHAI filed an application before the

Arbitral Tribunal in which it was claimed that the NHAI had till then not

received a copy of the Award. Accordingly, NHAI requested the Arbitral

Tribunal for a copy of the Award.

5. This application was listed before the Arbitral Tribunal on 31st

May 2010. The Arbitral Tribunal rejected the said application by the

following order, which was passed in the presence of learned counsel for

the parties:

“The Respondent’s Counsel had sent an application dated 17th

May 2010 pleading that the copy of the Award had not been

supplied to the Respondent and as such a copy may be given to

the Respondent at the earliest. We have gone through the records.

Signed copies of the Award were sent to both the parties by

Regd. AD Post. The postal receipts as well as Ads are available

on our records. Therefore, the plea of the Respondent that a

copy was not sent to it cannot be accepted. The prayer for

supplying one more copy is declined. The claimant has moved

an application u/s 33(4) of the A&C Act, 1996 for determination

of the amounts due under the Award to claimant. Copy has been

given to Ld. Counsel for the respondent. Response to the

quantifications as made by the claimant be filed within 4 weeks

with copy to Ld. Counsel for the claimant, who may file a

rejoinder thereto within 2 weeks thereafter. The application would

be taken up for consideration on 05th August 2010 at 5:00 P.M.

The parties are directed to deposit arbitration fee in equal share

for 3 hearings for each of the Arbitrators @ Rs. 20,000/- per

hearing. The fee be paid within 4 weeks. TDS certificates for

the earlier payment be also supplied to the Arbitrators within 4

weeks.”

6. The Arbitral Tribunal passed an amended Award on 9th September

2010. It appears that the Arbitral Tribunal sent a copy of the amended

Award to the parties at their respective addresses as appearing in the

memo of parties by registered post on 1st October 2010. It is the case

of NHAI that a copy of the amended Award, although may have been

received at its corporate office at Delhi, was not received by the Project

Implementation Unit (‘PIU’) of the NHAI at Salem in Tamil Nadu. A

letter dated 7th December 2010 was written by the Project Director of

the NHAI at Salem to the Arbitral Tribunal enclosing a written request

on behalf of the NHAI for supply of a formal copy of the amended

Award dated 9th September 2010. In the enclosed written request, in

para 2, it was stated that the NHAI had been informed by the Respondent

through its representative that the Tribunal had published an amended

Award on 9th September 2010 and that the Respondent had been furnished

a copy thereof. There was no indication as to when the NHAI was so

informed by the Respondent. It was further stated that the NHAI had not

received any formal communication or a copy of the amended Award in

its office.

7. In reply to the said letter dated 7th December 2010, the Secretary

to the Presiding Arbitrator wrote a letter dated 13th December 2010 to

the Project Director of the NHAI at Salem as under:


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“Sir,

Kindly refer to your letter No. 2130 dated 7th December 2010

along with written request for forwarding a formal copy of the

Amended Award dated 9.9.2010 to the respondent. I am directed

to inform you that the signed copy of the Amended Award dated

9.9.2010 was sent to you as well as the opposite party through

Regd. Post vide receipt dated 1st October 2010. It is presumed

that you must have received the signed copy of the Amended

Award. However, without prejudice to the respective rights of

the parties in regard to the limitation for filing objections I am

enclosing a True Copy of the Amended Award dated 9th

September 2010. This True Copy has been certified by the

Presiding Arbitrator, Hon.ble Mr. Justice R.C. Chopra (Retd.).

Thanking you,

Yours faithfully,

Sd/-

Secretary to the

Justice R.C. Chopra (Retd.)

Presiding Arbitrator”

8. According to the NHAI, the above letter was received along with

a copy of the amended Award by it on 20th December 2010. It is

contended that the present petition was filed on 15th March 2011 within

a period of three months from the date of receipt of the amended Award

and therefore was within limitation in terms of Section 34(3) of the Act.

9. The Respondent has, however, denied the above assertion. The

Respondent made an application under the Right to Information Act,

2005 to the Minto Road Post Office at New Delhi and received a reply

from the said Post Office by a letter dated 1st March 2011 that the

registered letter sent by the Tribunal to the NHAI at its corporate office

at New Delhi enclosing a copy of the amended Award dated 9th September

2010 was delivered at that address on 4th October 2010. Accordingly,

it is contended by the Respondent that the present petition was filed

beyond a period of three months after 4th October 2010 and is therefore

clearly barred by limitation in terms of Section 34(3) of the Act. The

second contention is that, in any event, NHAI seeks to challenge not

merely the amended Award dated 9th September 2010 but the main

Award dated 20th March 2010. Consequently, the present petition is

clearly barred by limitation.

10. Mr. Sudhir Nandrajog, learned Senior counsel appearing for

NHAI relied on the judgment of the Supreme Court in Union of India

v. Tecco Trichy Engineers and Contractors AIR 2005 SC 1832 to

contend that for the purposes of Section 34(3) as well as Section 31(5)

of the Act the Award should be taken to have been delivered to NHAI

only when it was in fact received by the concerned officer of the NHAI

who was “directly connected with and involved in the project in question”

and “who is control of the proceedings before the Arbitrator.” He also

relied on the decision of this Court in National Projects Constructions

Corporation Ltd. v. Bundela Bandhu Constructions Company AIR

2007 Del 202 which followed the decision in Tecco Trichy Engineers

and Contractors. It is submitted that in the present case, some of the

correspondence exchanged between the Arbitral Tribunal and the NHAI

was with its project office at Salem and that notwithstanding the memo

of parties in the proceedings before the Arbitral Proceedings showing the

address of NHAI as its corporate office at New Delhi, it was incumbent

on the Arbitral Tribunal to ensure that the Award was sent to NHAI’s

project office at Salem. Alternatively, it is submitted that even if it were

to be assumed that a certified copy of the Award was delivered to the

NHAI at its corporate office in Delhi, the limitation for the purpose of

Section 34 (3) of the Act would begin to run only from the time the

amended Award was further delivered to NHAI’s project office at Salem.

11. Mr. Amit George, learned counsel appearing for the Respondent,

on the other hand, points out that despite the application by the NHAI

before the Arbitral Tribunal being rejected on 31st May 2010, thereby

negativing its plea that it had not received a copy of the main Award

dated 20th March 2010, the Petitioner never wrote to the Arbitral Tribunal

informing it that the proper address for dispatch of the certified copy of

the Award was not its corporate office but the project office at Salem.

He further submits that even before this Court, both in the memo of

parties as well as in the affidavit in support of the petition, the address

of the NHAI is indicated as its corporate office at Delhi. The confirmation

from the postal authority also is to the effect that the amended Award

dated 9th September 2010 was received in the corporate office of NHAI

at New Delhi on 4th October 2010. Consequently, there is no doubt that


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the present petition was barred by limitation in terms of Section 34 (3)

of the Act.

12. In order to appreciate the above submissions, it is necessary to

refer to the relevant statutory provisions. Under Section 31 (5) of the

Act, once an arbitral Award is made “a signed copy shall be delivered to

each party.” This is no doubt an obligation on the Arbitral Tribunal. In

the present case, as is evident from the order dated 31st May 2010

passed by the Arbitral Tribunal, once the main Award dated 20th March

2010 was passed by it, certified signed copies thereof were dispatched

to the NHAI as well as the Respondent by registered post with

acknowledgement due. The Arbitral Tribunal has further stated in the

order dated 31st May 2010 that the postal receipt as well as the

acknowledgement due card was available on its record. The Arbitral

Tribunal rejected the plea of the NHAI that a copy of the Award dated

20th March 2010 was not sent to it. There was a presumption that the

Award dated 20th March 2010 had been delivered in due course to the

NHAI at its corporate office at New Delhi.

13. The memo of parties in the arbitral proceedings, as is evident

from the first page of the main Award as well as the amended Award,

indicates the address of the NHAI to be its corporate office at New

Delhi. As rightly pointed out by learned counsel for the Respondent the

memo of parties in the present petition as well as the affidavit in support

of the petition clearly indicates the address of the NHAI to be its corporate

office at New Delhi. In the absence of the NHAI informing the Tribunal

that the proper address for dispatch of all communications and in particular

certified copies of the Award was its project office at Salem, the Tribunal

would have had no means to know that the copies of the Award ought

not to have been sent to NHAI’s corporate office at New Delhi. There

is an obligation on the parties to a dispute to inform the forum in which

such proceedings are pending of the correct address to which copies of

the Award or proceedings should be sent. The Arbitral Tribunal is not

required to make enquiries as to the proper address of the party for the

purposes of communication. It has to go by the address that appears in

the memo of parties or cause title of the case before it. In the present

case, therefore, the Arbitral Tribunal fully complied with the requirement

of Section 31 (5) of the Act when it sent the Award as well as the

amended Award to the corporate office of NHAI at New Delhi.

14. Section 34 (3) of the Act reads as under:

“Section 34 Application for setting aside arbitral award:

(3) An application for setting aside may not be made after three

months have elapsed from the date on which the party making

that application had received the arbitral award, or, if a request

had been made under section 33, from the date on which that

request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was

prevented by sufficient cause from making the application within

the said period of three months if may entertain the application

within a further period of thirty days, but not thereafter.”

15. The learned Senior counsel for the NHAI is right in contending

that the period of limitation would begin to run only from the date the

certified copy of the amended Award is received by a party to the

arbitration proceedings before the Arbitral Tribunal. The key phrase in

the above provision is “the date on which the party making that application

had received the arbitral award.” In the considered view of this Court,

the ‘party’ for the purposes of Section 34 (3) of the Act is no different

from the ‘party’ for the purposes of Section 31 (5) of the Act. In both

provisions, the word ‘party’ is to mean that party whose address is

indicated in the memo of parties or the cause title of the proceedings

before the arbitral proceedings.

16. In the present case, after the amended Award dated 9th

September 2010 was sent to its project office at Salem, NHAI on 31st

December 2010 filed an application under Section 33 of the Act. The

Arbitral Tribunal rejected the said application on 10th February 2011.

However, learned Senior counsel for the Petitioner very fairly stated that

the NHAI cannot take advantage of the dismissal of its application under

Section 33. In other words, the period of limitation would begin to run

from the date on which the amended Award dated 9th September 2010

was delivered to NHAI and would not get postponed to 10th February

2011.

17. In the present case at no stage did the NHAI inform the Arbitral

Tribunal that the address of NHAI as appearing in the memo of parties

or the cause title in the arbitral proceedings was not the address to which


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National Highways Authority of India v. Bhageeratha Eng. Ltd. (S. Muralidhar, J.)

the copies of the Award or the amended Award had to be sent. Absent

such a specific communication by the NHAI to the Arbitral Tribunal, the

dispatch of the certified copy of the Award as well as of the amended

Award by the Arbitral Award to the NHAI at its corporate office at New

Delhi by registered post was sufficient compliance with the requirements

of both Sections 31(5) as well as 34(3) of the Act. It is not possible to

accept the contention of learned Senior counsel for NHAI that for the

purpose of Section 34(3) of the Act the limitation would begin to run

only from the date on which the project office of the NHAI received a

copy of the amended Award dated 1st September 2010. As explained

hereinbefore, the amended Award dated 9th September 2010 was received

in Delhi office on 4th October 2010 itself and that would be the relevant

date for the purpose of commencement of limitation under Section 34(3)

of the Act.

18. The facts of the decision in Tecco Trichy Engineers and

Contractors were that the Award in that case was sent to the General

Manager, Southern Railway on 12th March 2001. It was received by the

Chief Engineer who was also the Chief Project Manager on 19th March

2001. It was opined by the Supreme Court that for the purposes of

Section 34(3) the limitation began to run only from the date on which

the Chief Engineer received a copy of the Award passed by the Tribunal.

Since the Railways was a large organization containing divisional heads,

it was only the departmental head, which in that case was the Chief

Engineer, who was likely to know whether the arbitral Award was adverse

to the departmental interests. He was the person directly connected with

and involved in the proceedings. However, as will be noticed, the facts

in the present case are different.

19. The distinguishing feature of the present case is that there were

applications made by the parties under Section 33 of the Act which

would show that both parties knew of passing of the impugned Award.

In the present case, however, the NHAI could not have pleaded that it

did not know of passing of the main Award after it received a copy of

the application filed by the Respondent under Section 33 of the Act on

or around 26th April 2010. It also knew that the main Award was in fact

sent to its Delhi office because the order dated 31st May 2010 was

passed by the Tribunal in the presence of its counsel. The Arbitral

Tribunal rejected the plea of NHAI that it had not sent the NHAI a copy

of the Award. Even thereafter, the NHAI made no effort to inform the

Arbitral Tribunal in writing that the amended Award or order, which it

knew was going to come about as a result of the application filed by the

Respondent under Section 33, should be sent to its project office at

Salem.

20. For the aforementioned reasons, this Court finds that the present

petition is barred by limitation in terms of Section 34(3) of the Act. The

petition is accordingly dismissed with costs of Rs. 5,000/- which will be

paid by the NHAI to the Respondent within four weeks.


CM

MS. MADHU GUPTA ....APPELLANT

VERSUS

M/S. GARDENIA ESTATES (P) LTD. ....RESPONDENT


CM (M) NO. : 1239/2011, DATE OF DECISION: 21.10.2011

CM NOS. : 19530-31/2011 &

CAVEAT NO. : 958/2011

Delhi Rent Control Act, 1958—Section 25B, 14(1)(e)—

Code of Civil Procedure, 1908—Order VI Rule 17—

Eviction petition by respondent seeking eviction of

petitioner from ground floor of premises bearing no.

138-A, Golf Links, New Delhi, on the ground of bonafide

requirement for residence of its Director Amit Deep

Kohli—Leave to defend filed on 23.07.10—Application

seeking amendment of the leave to defend filed on

09.05.2011—Amit Deep Kohli is a Director in other

holding companies of the petitioner—Other properties

557 558


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Madhu Gupta v. Gardenia Estates (P) Ltd. (Indermeet Kaur, J.) 559 560

available with Company for residence—Tenant is an

old lady staying alone—Petitioner submitted, Landlord

was a construction company carrying on construction

activity—Other properties were commercial flats not

part of Delhi—Application seeking leave to defend

dismissed—Petition—Held—The facts which were

sought to be incorporated by amendment i.e. that the

landlord Company was a part of a huge Real Estate

Group of Companies having several properties in

their name were all facts known to the tenant—These

facts were pre-existing i.e. existing at the time when

the application for leave to defend was filed; if such

an application is permitted the whole purpose and

intent of the provisions of Section 25 B (4) would be

defeated as the specifically stipulated period for filing

an application for leave to defend within 15 days

would be given a go by and by permitting the

amendment there would be an automatic extension of

time for filing the application for leave to defend—

This could not and was not the intend of the statute.

Contention of the petitioner before this Court is that the

procedure contained in Section 25B is silent as to whether

an amendment is permissible or not and in the absence of

which Rule 23 of the Delhi Rent Control Rules, 1959 can be

adhered to. Reliance has also been placed upon the

judgment of Ved Prakash (supra). The said judgment had

been pronounced on 07.8.2009 which is admittedly prior in

time to the judgment of Prithipal Singh (supra) which was

pronounced on 18.12.2009. The judgment of Prithipal

Singh is clear and categorical on the point that the

procedure contained in Section 25B of the DRCA has to be

strictly adhered to for dealing with a petition under Section

14(1)(e) of the DRCA. This ratio of Prithipal Singh precludes

the applicability of the provisions of the Code of Civil

Procedure; further the amendments sought for even otherwise

were of facts which were already known to the petitioner.

The facts which were sought to be incorporated i.e. that the

landlord company was a part of a huge Real Estate Group

of companies having several properties in their name were

all facts known to the tenant; even otherwise they would not

have a bearing on the bonafide requirement of the Director

of the company namely Amit Deep Singh who is seeking this

eviction order for the personal residence for his wife and two

children. These facts were all pre-existing i.e. existing at the

time when the application for leave to defend was filed; if

such an application is permitted the whole purpose and

intent of the provisions of Section 25B(4) would be defeated

as the specifically stipulated period for filing an application

for leave to defend within 15 days would be given a go by

and by permitting the amendment there would be an

automatic extension of time for filing the application for leave

to defend. This could not and was not the intent of the

statute. In Ved Prakash (Supra) also the amendments

sought for although being of subsequent events were

disallowed, as having been filed belatedly. (Para 11)

Important Issue Involved: Amendment of application for

leave to defend cannot be permitted.

[Vi Ba]

APPEARANCES:

FOR THE APPELLANT : Mr. V.K. Rao, Sr. Advocate with

Ms. Ekta Kalra, Advocate.

FOR THE RESPONDENT : Mr. P.D. Gupta and Mr. Kamal

Gupta, Advocates.

CASES REFERRED TO:

1. Prithipal Singh vs. Satpal Singh, (2010) 2 SCC 15.

2. Ved Prakash & Anr. vs. Om Prakash Jain 2009 10

(AD)Delhi 284.

3. Ravi Dutt Sharma vs. Ratan Lal Bhargava (1984) 2 SCC

75.



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561 562Madhu Gupta v. Gardenia Estates (P) Ltd. (Indermeet Kaur, J.)


1. Order impugned is the order dated 24.9.2011 vide which the

application filed by the tenant seeking amendment of his application for

leave to defend under Order 6 rule 17 of the Code of Civil Procedure

(hereinafter referred to as ‘the Code’) had been dismissed.

2. Record shows that the present eviction petition has been filed by

the landlord M/s Gardenia Estates (P) Ltd. on the ground that there is

bonafide requirement of the one of the directors of the landlord company

namely Amit Deep Kohli of the disputed premises for his residence. The

disputed premises are the ground floor of premises bearing no. 138-A,

Golf Links, New Delhi which has been tenanted out to the tenant/petitioner

namely Madhu Gupta. Application for leave to defend had been filed on

23.7.2010; present application seeking amendment of the said application

for leave to defend had been filed about ten months later i.e. on 09.5.2011.

In the application under Order 6 Rule 17 of the Code the submission

made by the tenant is that the director of the landlord company namely

Amit Deep Kohli is a director in other holding companies of the petitioner

as well and details of the said companies have been given para 3 of the

said application; contention being that the present petition has been filed

only to harass the petitioner as other properties are also available with the

petitioner company; further contention being that the company Speed

Lines Pvt. Ltd. has commercial flats at six places details of which have

been mentioned in the said application; there is no bonafide need of the

present accommodation; the application further wishes to incorporate the

factum that the tenant is an old ailing lady staying alone at the aforenoted

premises and the intent of the legislation i.e. the Delhi Rent Control Act

would be destroyed if such like petitions are allowed. This is the gist of

the amendment application.

3. Reply has been filed by the landlord to the application under

Order VI Rule 17 of the Code. On behalf of the landlord it has been

urged that the properties which have been detailed in the application for

amendment stating that Amit Deep Kohli is a director of the aforenoted

company which has commercial flats at various places, are all located in

Gurgaon; submission is that the landlord is a construction company and

is carrying on its commercial activity of construction; the aforenoted

properties are commercial flats and admittedly not a part of Delhi; the

premises in dispute is bonafide required by the director of the company

for his own need; the present accommodation where the petitioner is

putting up his family is small to accommodate his wife and two children.

4. The impugned order had dismissed the application primarily on

the ground that an application seeking amendment is not permissible in

an eviction petition under Section 14(1)(e) of the DRCA as the procedure

enlisted for dealing with such an application is contained in Section 25(B)

of the said Act and in view of the pronouncement of the Apex Court

reported in (2010) 2 SCC 15 Prithipal Singh Vs. Satpal Singh, such

an application could not be entertained.

5. This order is the subject matter of the present petition.

6. On behalf of the petitioner it has vehemently been urged that the

judgment of Prithipal Singh (supra) is peculiar to the facts of the said

case; contention being that in that case application for leave to defend

was not filed within the stipulated period whereupon the court had noted

that the time could not be extended for the said purpose and in that

scenario it has been noted that Rule 23 of Delhi Rent Control Rules, 1959

is inapplicable. Facts of the instant case are different. Counsel for the

petitioner has placed reliance upon a judgment of a Bench of this Court

reported in 2009 10 (AD)Delhi 284 Ved Prakash & Anr. Vs. Om

Prakash Jain wherein an amendment application seeking permission to

amend an application for leave to defend had been considered; contention

being that such an application is clearly maintainable; even on merits the

case of the petitioner is prima facie strong; the last contention of the

petitioner being that he has no objection if a time bound frame is chalked

out by this court for disposal of his application for leave to defend.

7. In the counter arguments; these submission have been vehemently

disputed. It is submitted that the Apex Court has in Prithipal Singh

(supra) held that such an application is not maintainable; even on merits

the facts now sought to be incorporated were all pre-existing which were

well within the knowledge of the petitioner at the time of filing of his

application for leave to defend; this is only a delaying tactic.

8. In Prithipal Singh (supra) the court was dealing with the prayer

of the tenant who had sought extension of time for filing his application

for leave to defend. Admittedly he had not filed the application within the

stipulated period of 15 days. The history of the legislation i.e. the DRCA

and introduction of Chapter IIIA which is a special procedure introduced


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Madhu Gupta v. Gardenia Estates (P) Ltd. (Indermeet Kaur, J.) 563 564

by the legislature for a summary trial of certain applications filed under

the Rent Act had been delved into. In this context the Apex Court had

noted as follows:

“Section 25-B of the Act is a complete code by which the entire

procedure to be adopted for eviction of a tenant on the ground

of bona fide requirement filed by the landlord in respect of a

premises, shall be followed. From a close examination of Section

25-B(1) of the Rent Act, it is evident and clear that an application

filed by a landlord for recovery of possession of any premises

on the ground specified in clause(e) of the proviso to sub-

section(1) of Section 14 or under Section 14-A or under Section

14-B or under 14-C or under Section 14-D, shall be dealt with

in accordance with the procedure specified in this section. Apart

from that, Section 25-B itself is a special code and therefore, the

Rent Controller, while dealing with an application for eviction of

a tenant on the ground of bona fide requirement, has to follow

a procedure strictly in compliance with Section 25-B of the

Act.”

9. Rule 23 of the Delhi Rent Control Rules, 1959 is also relevant;

the extract of which reads herein as under:

“23.Code of Civil Procedure to be generally followed In deciding

any question relating to procedure not specifically provided by

the Act and these rules the Controller and the Rent Control

Tribunal shall, as far as possible, be guided by the provisions

contained in the Code of Civil Procedure, 1908.”

10. In this context the Apex Court in Prithipal Sing (supra) on the

applicability of Rule 23 had made the following observation: “Rule 23

does not specifically confer any power on the Controller to follow the

provisions of CPC in cases of special classes of landlords. Rule 23 is a

general rule, by which the Controller in deciding any question relating to

procedure not specifically provided by the Act and these Rules shall, as

far as possible, be guided by the provisions contained in CPC. After

insertion of Section 25-B of the Act, any application for granting eviction

for a special kind of landlord, shall be dealt with strictly in compliance

with Section 25-B and Rule 23 of the Rules, which also does not give

full right to apply the provisions of CPC, cannot be applied.”

11. Contention of the petitioner before this Court is that the procedure

contained in Section 25B is silent as to whether an amendment is

permissible or not and in the absence of which Rule 23 of the Delhi Rent

Control Rules, 1959 can be adhered to. Reliance has also been placed

upon the judgment of Ved Prakash (supra). The said judgment had been

pronounced on 07.8.2009 which is admittedly prior in time to the judgment

of Prithipal Singh (supra) which was pronounced on 18.12.2009. The

judgment of Prithipal Singh is clear and categorical on the point that the

procedure contained in Section 25B of the DRCA has to be strictly

adhered to for dealing with a petition under Section 14(1)(e) of the

DRCA. This ratio of Prithipal Singh precludes the applicability of the

provisions of the Code of Civil Procedure; further the amendments sought

for even otherwise were of facts which were already known to the

petitioner. The facts which were sought to be incorporated i.e. that the

landlord company was a part of a huge Real Estate Group of companies

having several properties in their name were all facts known to the

tenant; even otherwise they would not have a bearing on the bonafide

requirement of the Director of the company namely Amit Deep Singh

who is seeking this eviction order for the personal residence for his wife

and two children. These facts were all pre-existing i.e. existing at the

time when the application for leave to defend was filed; if such an

application is permitted the whole purpose and intent of the provisions of

Section 25B(4) would be defeated as the specifically stipulated period for

filing an application for leave to defend within 15 days would be given

a go by and by permitting the amendment there would be an automatic

extension of time for filing the application for leave to defend. This could

not and was not the intent of the statute. In Ved Prakash (Supra) also

the amendments sought for although being of subsequent events were

disallowed, as having been filed belatedly.

12. The Supreme Court in the judgment of Prithipal Singh has also

quoted with approval the observation made by the Apex Court in its

earlier judgment reported in (1984) 2 SCC 75 Ravi Dutt Sharma Vs.

Ratan Lal Bhargava. Relevant extract reads as follows:

“7. ....... The dominant object of amending act is to provide a

speedy, expeditious and effective remedy for a class of landlords

contemplated by Section 14(1)(e) and 14-A and for avoiding

unusual dilatory process provided otherwise by the Rent Act. It


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565 566Madhu Gupta v. Gardenia Estates (P) Ltd. (Indermeet Kaur, J.)

is common experience that suits for eviction under the Act take

a long time commencing with the Rent Controller and ending up

with the Supreme Court. In many cases experience has indicated

that by the time the eviction decree became final several years

elapsed and either the landlord died or the necessity which provided

the cause of action disappeared and it there was further delay in

securing eviction and the family of the landlord had by then

expanded, in the absence of accommodation the members of the

family were virtually thrown on the road. It was this mischief

which the legislature intended to avoid by incorporating the new

procedure in Chapter III-A. The legislature in its wisdom though

that in cases where the landlords required their own premises for

bona fide and personal necessity they should be treated as a

separate class along with the landlords covered by Section 14-

A and should be allowed to reap the fruits of decrees for eviction

within the quickest possible time. In cannot, therefore, be said

that the classification of such landlords would be an unreasonable

one because such a classification has got a clear nexus with the

objects of the amending Act and the purposes which it seeks to

subserve. Tenants cannot complain of any discrimination because

the Rent Act merely gave certain protection to them in public

interest and if the protection or a part of it afforded by the Rent

Act was withdrawn and the common law right of the tenant

under the Transfer of Property Act was still preserved, no genuine

grievance could be made.”

13. Thus after the insertion of 25-B of the Act any application for

granting eviction by a special kind of landlord shall be dealt with strictly

in compliance with the procedure as contained in Section 25-B. Impugned

order suffers from no infirmity. Dismissed.


W.P. (CIVIL)

ZAHID PARWEZ ....PETITIONER

VERSUS

UOI & ORS. ....RESPONDENTS

(VIPIN SANGHI, J.)


Constitution of India, 1950—Article 226—Writ —Narcotic

Drugs and Psychotropic Substance Act, 1985 (NDPS

Act)—Section 68(H) (I) Section 68 A(2) (d)—Section 68

B(g)—Section 68 j—Prevention of Illicit Traffic in

Narcotic Drugs and Psychotropic Substance Act, 1988

(PITNDPS Act)—Section 3(1) and 10(1)—Detention order

dated 26.07.1989 issued aganist Mohd. Azad @ Avid

Parvez, brother of the petitioner—Detained w.e.f.


beyond initial three months issued—Detention order

dated 26.07.1989—challenged before Calcutta High

Court—Unsuccessful—Special Leave Petition before

the Supreme Court dismissed—Challenge to order u/

s.10(1) successful—Detention beyond initial three

months vitiated—show cause notice u/s. 68 H (1) NDPS

Act issued to the petitioner—reply submitted—

Daclaration issued and properties forfeited to the

Central Government vide order dated 16.10.1997—

Appeal before the Appellant Authority—Dimissed vide

order dated 07.06.1999—Order challenged through the


properties were acquired by his father for him not

taken before the Competent Authority nor before the

Appellate Authority—No document filed either before

the Competent Authority nor before the Appellate


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567 568Zahid Parwez v. UOI & Ors. (Vipin Sanghi, J.)

Authority —Held—Plea after thought—Cannot be raised

for the first time in the Writ petition—The burden of

proving that the property was not illegally acquired on

the person affected—The consistent findings do not

call for any interfernce—Petition dimissed with costs.

I may note that, for the first time, in the present writ petition

the petitioner has made an assertion that his father was

having liquor vends; that he was an income tax assessee,

and; that he had rental income. None of this was stated

before the competent authority or the appellate authority.

No evidence/document was filed either before the competent

authority, or the appellate authority, and none has been

filed in these proceedings. It is not permissible for the

petitioner to raise such pleas before this Court for the first

time in these proceedings. (Para 13)

The statutory framework appears to be founded upon the

fact that the details and particulars as to how a particular

property has been acquired by a person are within his

special knowledge. It is for him to explain as to how he has

acquired it, and the source of the funds from which the

property had been acquired. (Para 18)

Important Issue Involved: (A) It is not permissible to

raise pleas, which have not been taken before any of the

authorities, for first time in writ proceedings.

(B) The statutory framework (under the NDPS Act) appears

to be founded upon the fact that the details and particulars

as to how a perticular property has been acquired by a

person are within his special knowledge. It is for him to

explain as to how he has acquired it, and the source of the

funds from which the property had been acquired.

[Vi Gu]

APPEARANCES:

FOR THE PETITIONER : Mr. Vishal Arun, Advocate.

FOR THE RESPONDENTS : Mr. A.S Chandhiok, ASG, with Mr.

Ruchir Mishra, Advocate for the

Respondents Nos.1 to 4.

CASES REFFERRED TO:

1. Shahid Parvez vs. Union of India & Others, 175 (2010)

DLT 547.

2. Kesar Devi vs. Union of India & Others, (2003) 7 SCC

427.

3. Maqudoom Meera Hameem vs. Joint Secretary to

Government of India, W.P.(Crl.) No. 83/1995 decided on

17th August, 1995.

4. Akhilesh Kumar Tyagi vs. Union of India reported in

1995 IV AD (Delhi) 107.

5. Akhilesh Kumar Tyagi vs. Union of India & Others, 60

(1995) DLT 203 (FB).

6. Attorney General For India & Others vs. Amratlal

Prajivandas & Others, (1994) 5 SCC 54, at para 56(3)(b).

RESULT: Petition dimissed.

VIPIN SANGHI, J. (Oral)

1. One Md. Azad @ Avid Parwiz S/o Abdul Rouf was sought to

be detained vide detention order dated 26.07.1989 issued by the Joint

Secretary to the Government of India under Section 3(1) of the Prevention

of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,

1988 (PITNDPS Act) with a view to prevent him from engaging in

manufacture, possession, sale, purchase, transportation, warehousing,

import & export inter-State of narcotic drugs. This detention order became

effective on 10.07.1991, when the detenue was detained. On 12.08.1991,

the Special Secretary to the Government of India sought to issue a

declaration under Section 10(1) of the PITNDPS Act. The purpose of

issuing the said declaration was to justify the detention beyond the initial

period of three months.


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Zahid Parwez v. UOI & Ors. (Vipin Sanghi, J.) 569 570

The reply was sent by the petitioner, but the same has not been placed

before this Court.

4. The competent authority vide order dated 16.10.1997 held that

it was conclusively established that the aforesaid properties are illegally

acquired within the meaning of Section 68B(g) of the NDPS Act. A

declaration was issued that the said properties are illegally acquired within

the meaning of the said provision and they were forfeited by the Central

Government, free from all encumbrances. The petitioner preferred an

appeal before the appellate authority for forfeited properties. Before the

appellate authority, it appears, the mother of the petitioner filed an affidavit,

wherein it was claimed that the properties had been acquired by her

husband, i.e., the late father of the petitioner, in the name of the petitioner.

It was claimed that the detenue Md. Azad @ Avid Parwiz had no concern

with the said properties and they did not belong to him.

5. The appeal preferred by the petitioner was dismissed vide order

dated 07.06.1999 upholding the forfeiture of the said properties.

Consequently, the petitioner has preferred this writ petition under Article

226 of the Constitution of India to assail the aforesaid orders of the

competent authority as well as the appellate authority. The petitioner has

also sought to assail the detention order dated 26.07.1989 and the

declaration dated 12.08.1991 in respect of his brother Md. Azad @ Avid

Parwiz.

6. At the outset, I may note that the prayer in relation to the

detention order dated 26.07.1989 and the declaration dated 12.08.1991

made in the present petition is misconceived for the reason that the

detention order dated 26.07.1989 was unsuccessfully challenged by the

detenue before the Calcutta High Court and thereafter before the Supreme

Court. The said challenge has attained finality and the petitioner cannot

seek to reopen the same. So far as the declaration dated 12.08.1991 is

concerned, the same already stands quashed by this Court in W.P.(Crl.)

No. 315/1992. Moreover, it is not open to the petitioner in these proceedings

to challenge the detention order in the light of the judgment of the

Supreme Court in Attorney General For India & Others Vs. Amratlal

Prajivandas & Others, (1994) 5 SCC 54, at para 56(3)(b).

7. The first submission of the learned counsel for the petitioner is

that the show cause notice was incompetent inasmuch as the petitioner

2. The admitted position is that the detenue unsuccessfully challenged

the detention order dated 26.07.1989 before the Calcutta High Court vide

Crl. Misc. No. 1244/1992. The Special Leave Petition (SLP) preferred by

the detenue before the Supreme Court was also dismissed. However, the

challenge to the declaration made under Section 10(1) of the PITNDPS

Act was successful before this Court vide W.P.(Crl.) No. 315/1992.

This Court while disposing of W.P.(Crl.) No. 315/1992, inter alia, passed

the following order:

“It is agreed between the parties that this matter is covered by

the decision of this Court in Akhilesh Kumar Tyagi Vs. Union

of India reported in 1995 IV AD (Delhi) 107. The writ petition

is allowed in terms thereof. The initial period of detention of

three months is sustained.

...... ..... ..... ..... ..... I, therefore, hold that the detention for a

period of three months is valid and continue detention is vitiated.”

3. The petitioner is the brother of the detenue Md. Azad @ Avid

Parwiz. A show cause notice was issued to the petitioner under Section

68H(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985

(NDPS Act) on 20.04.1994. It was contended that the petitioner is a

person covered under Section 68A(2)(d) of the NDPS Act. The petitioner

was granted the opportunity to show cause in response to the said

notice. The said notice pertained to the following properties:

Deed No. Date of Mouza Vol. Khata Plot

Regn. No. No. No.

4178 of 16.8.85 Samakona, 67 6 44

1985 Balasore.

4990 of 11.10.85 Kasaba, 179 147 1342

1985 Balasore. 1343

1344

4991 of 14.10.85 Kasaba, 79 174 1342

1985 Balasore. 1343

1344


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is not covered under Chapter V-A of the NDPS Act. He submits that in

the present case, the detention beyond the period of three months was

held to be illegal. Consequently, Section 68Z came into play, which

provides that where the detention order of the detenue is set aside or

withdrawn, properties seized or frozen under this Chapter shall stand

released. In this regard, he places reliance on the order dated 16.05.2002

in W.P.(Crl.) No. 315/1992 as also the judgment of this Court in Shahid

Parvez vs. Union of India & Others, 175 (2010) DLT 547. He submits

that in Shahid Parvez (supra), this Court had considered the effect of

the order passed on 16.05.2002 in W.P.(Crl.) No. 315/1992 and in

paragraph 16 held that the detention order itself was void ab initio. Para

16 of the decision in Shahid Parvez (supra) reads as follows:

“16. Analysing the order dated 16th May 2002 passed by this

Court in the present case, the opening line appears to indicate

that this Court held the initial period of three months detention

of the Petitioner’s brother to be valid but the remaining period

of detention to be invalid in terms of the judgment in Akhilesh

Kumar Tyagi. What is also significant is that the contention of

the learned ASG to the contrary was negatived and it was held

that “the detention for a period of three months is valid and

continued detention is vitiated.” Extending the logic of the decision

in Akhilesh Kumar Tyagi to the order dated 16th May 2002,

while the detention for a period of three months was held to be

valid, the detention order itself was held to be void ab intio. It

must be noted that the order dated 16th May 2002 passed by this

Court attained finality with the Respondents accepting it. Further,

while the period of three months of detention was held valid, the

detention order was itself held to be void ab initio, i.e. from the

date it was issued.”

8. I do not find any merit in this submission of the learned counsel

for the petitioner. The dismissal of the petitioner’s writ petition before

the Calcutta High Court and the affirmation of the said dismissal by the

Supreme Court coupled with the order dated 16.05.2002 passed in

W.P.(Crl.) No. 315/1992, leaves no manner of doubt that so far as the

initial detention order dated 26.07.1989 is concerned, the same remained

intact and was not quashed or set aside in any judicial proceeding. The

detention of the detenue in pursuance of the said detention order for the

initial period of three months was held to be legal and valid. However,

on account of the fact that the declaration No. 13/91 dated 12.08.1991

was held to be illegal by this Court in W.P.(Crl.) No. 315/1992, the

effect was that the act of detention of the detenue beyond the period of

three months became illegal.

9. A careful examination of the order dated 16.05.2002 in W.P.(Crl.)

No. 315/1992, the judgment of the Full Bench of this Court in Akhilesh

Kumar Tyagi Vs. Union of India & Others, 60 (1995) DLT 203 (FB),

and the judgment of this Court in Shahid Parvez (supra) would show

that there is a typographical error in the aforesaid extract inasmuch, as,

the word ‘detention’ existing in the 13th line of the said paragraph has

wrongly been typed in place of the word ‘declaration’. The learned Judge

in Shahid Parvez (supra) has extracted in para 14 the position in law as

it existed in the light of the decision in Maqudoom Meera Hameem Vs.

Joint Secretary to Government of India, W.P.(Crl.) No. 83/1995

decided on 17th August, 1995, wherein it was held by the Division Bench

that in case “where the reference to the Advisory Board was made

beyond 5 weeks and the Advisory Board gave its opinion beyond 11

weeks, the continued detention during the extended period became bad”

(emphasis supplied). In Akhilesh Kumar Tyagi (supra) the correctness

of the decision in Maqudoom Meera Hameem (supra) was questioned

by the Union of India. It was contended that till such time as detention

order was quashed it remain valid. Consequently, it was contended by

the UOI that the detention beyond three months did not become illegal

automatically. This contention of the Union of India was rejected in

Akhilesh Kumar Tyagi (supra), wherein the Full Bench observed that

the continued detention beyond three months would be invalid. [see para

30 of the Akhilesh Kumar Tyagi (supra) which has been extracted in

Shahid Pervez (supra)]. The Court, in Akhilesh Kumar Tyagi (supra)

did not hold that merely because the declaration under section 9 of

COFEPOSA was illegal, the initial detention order, or the initial detention

was also ipso facto illegal. I am, therefore of the opinion that the word

‘detention’ used in para 16 before the words ‘order’ and after the words

‘for a period of three months was held to be valid’ in Shahid Pervez

(supra) should be read as ‘declaration’. Consequently, section 68Z has

no application to this case as the original detention order has not been

quashed or set aside or withdrawn at any stage by any competent authority.

Therefore, the respondents were entitled to invoke the provisions of


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Chapter V-A of the NDPS Act.

10. A perusal of Section 68A would show that the provisions of

Chapter V-A, which deal with forfeiture of properties derived from, or

used in illicit traffic applies to every person in respect of whom an order

of detention has been made under the PITNDPS Act. (see Section

68A(2)(c)). By virtue of Section 68A(2)(d) the said Chapter has been

made applicable to every person who is a relative of a person referred

to in clause (a) or clause (b) or Clause (c). The expression ‘relative’ has

been defined in Section 68B(i) to mean, inter alia, brother or sister of the

person. Therefore, it is amply clear that the petitioner is covered by

Chapter V-A of the NDPS Act, as he is the brother of the detenue, and

his contention to the contrary cannot be accepted.

11. It is next contended by the learned counsel for the petitioner

that the show cause notice was issued to the petitioner without any

inquiry or prima-facie appreciation of any relevant material by the

respondent. He submits that there is absolutely no nexus established by

the respondent between the petitioner’s property and the detenue or his

income allegedly derived from his alleged dealing in narcotics drugs and

psychotropic substances. He submits that the onus to establish the said

nexus lay upon the respondents, which they have completely failed to

discharge. He submits that the orders passed by the competent authority

and the appellate authority proceed on a presumption. Since the exercise

undertaken has penal consequences, the onus lay upon the respondents.

In this regard, he again places reliance on the decision in Shahid Parvez

(supra), and, in particular, paragraphs 18 to 20 of the said decision,

which read as follows:

“18. The impugned order of the CA, affirmed by the Appellate

Tribunal, cannot be sustained even on merits. The records of the

CA have been perused by this Court. The relevant period is the

one immediately preceding issuance of show cause notice to the

Petitioner under Section 68-H (1) of the NDPS Act. It appears

that following certain letters received from the Income Tax Office,

Balasore, on 1st November 1996, the Investigating Officer/CA at

Calcutta made a noting directing the Department “to ascertain

the existence of Shri Shahid Parvez.” He advised: “We may as

well write to Branch Manager, Central Bank of India,

Brahamansahi Branch, Soro, Balasore to furnish details of Bank

Account No. 263 such as name of holder and address, name of

introducer and address, date of opening and present position of

the account”.

19. This was followed by several reminders and the noting dated

17th June 1997 where it was acknowledged that the Branch

Manager, Central Bank of India had furnished address of the

brother of the Petitioner and other required information. However,

the notice sent under Section 68-H (1) NDPS Act appears to

have been returned with the remark “left”. It appears that previous

to this, an order was already passed against the Petitioner on

10th August 1992 under Section 68-F (2) of the NDPS Act. The

noting in the file CA/CAL/NDPS-86/92/93 do not show any

investigation having been conducted to co-relate the details received

from the Income Tax office in respect of source of the

Petitioner’s income to even form a prima facie view that the

properties in question were acquired by him from the earnings

of his brother Mohd. Azad on account of illicit trafficking in

drugs. In file CA/Cal/NDPS/31/98-99, there are two identical

notings dated 17th February 1999 and 9th March 1999 by the

CA, Calcutta which reads as under:

“I have perused the relevant records. I have applied my

mind to all the facts and circumstances of the case. I

have today recorded my reasons in terms of Section 68H

(1) of the NDPS Act, 1985 and I am satisfied that this is

a fit case for issue of notice under Section 68 H (1) of

the NDPS Act, 1985. Issue notice under Section 68H (1)

of the NDPS Act.”

20. It is not known what records were perused by the CA before

issuing the above orders. As far as this Court can find, there

was no systematic enquiry or investigation preceding the passing

of the above orders. It appears that prior to issuing a show-

cause notice to the Petitioner under Section 68-H(1) of the NDPS

Act, no effort was made by the CA to be prima facie satisfied

that the essential conditions existed to attract that provision.

Even before the CA or the Appellate Tribunal, the initial

burden was on the office of the CA to show that the

properties in the name of the Petitioner were acquired by


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him through the illegal earnings of his brother. The Petitioner

on his part produced a 1998 sale deed in his favour in respect

of one of the properties. However, the opinion formed by the

CA, as extracted hereinbefore, fails to establish even prima facie

any casual link existing between the Petitioner’s properties and

the illegal earnings of the Petitioner’s brother. The order of the

CA is a mere reproduction of the language of the statute which

is inadequate for demonstrating application of mind to arrive at

even a prima facie satisfaction that the essential ingredients of

Section 68-H (1) NDPS act stood attracted.” (emphasis supplied)

12. Once again I do not find any merit in the submission of the

learned counsel for the petitioner. It is not in dispute that the petitioner

was minor of about 12 years at the time when the aforesaid properties

are stated to have been acquired in the year 1985. He did not have any

independent source of income of his own at that time. This is not even

his case. The case set up by the petitioner at the appellate stage was that

his father had acquired the said properties for him. He did not produce

any material or evidence before the competent authority or the appellate

authority, and none has been produced even in these proceedings, to

show as to what was his father’s avocation, income and how he cornered

the resources to acquire the said properties.

13. I may note that, for the first time, in the present writ petition

the petitioner has made an assertion that his father was having liquor

vends; that he was an income tax assessee, and; that he had rental

income. None of this was stated before the competent authority or the

appellate authority. No evidence/document was filed either before the

competent authority, or the appellate authority, and none has been filed

in these proceedings. It is not permissible for the petitioner to raise such

pleas before this Court for the first time in these proceedings.

14. The impugned orders have to be tested on the basis of the

materials produced before the authorities who have passed these orders.

The said plea is clearly an afterthought and is an attempt to improve his

case by petitioner. From the known source of income of the petitioner

or his father, the aforesaid properties have not been established to have

been acquired. It has not even been argued that the competent authority

did not have, or did not record the reasons for issuance of the show

cause notice.

15. On the other hand, the principle of law contained in the aforesaid

observations made by this Court in Shahid Parvez (supra), with due

respect, appears to be per incuriam. I may refer to the provision contained

in Section 68J of the NDPS Act which provides that “in any proceedings

under this Chapter, the burden of proving that any property under Section

68H is not illegally acquired property shall be on the person affected.”

Therefore, the observation of the learned Judge that the onus would be

on the respondent authorities is in the teeth of the said statutory provision.

I may note that Section 68J has not been noticed by the learned Judge

in Shahid Parvez (supra).

16. So far as the competent authorities “reason” to believe that the

aforesaid properties are illegally acquired is concerned, the acquisition of

immovable properties by a minor of 12 years itself furnishes reason to

entertain the said belief. The consequence of the said belief is only that

an enquiry is set into motion by issuance of a show cause notice to grant

the person concerned an opportunity to disclose his income, earnings or

assets, out of which or by means of which he has acquired the property

in question.

17. While deciding Shahid Pervez (supra), the learned Judge has

also not noticed the judgment of the Supreme Court in Kesar Devi Vs.

Union of India & Others, (2003) 7 SCC 427. This was a case dealing

with the Smugglers and Foreign Exchange Manipulators (Forfeiture of

Property) Act, 1976 (SAFEMA). The provisions of SAFEMA, dealt with

by the Supreme Court in para 10 of the judgment, are similar to the

provisions of the NDPS Act with which I am concerned. Section 6(1)

of SAFEMA is similar to section 68H of NDPS Act. Section 8 of SAFEMA

is similar to section 68J of NDPS Act. The Supreme Court, inter alia,

observed as follows:

“The condition precedent for issuing a notice by the competent

authority under Section 6(1) is that he should have reason to

believe that all or any of such properties are illegally acquired

properties and the reasons for such belief have to be recorded

in writing. The language of the Section does not show that there

is any requirement of mentioning any link or nexus between the

convict or detenu and the property ostensibly standing in the


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name of the person to whom the notice has been issued. Section

8 of the Act which deals with burden of proof is very important.

It lays down that in any proceedings under the Act, the burden

of proving that any property specified in the notice served under

Section 6 is not illegally acquired property, shall be on the person

affected. The combined effect of Section 6(1) and Section 8 is

that the competent authority should have reason to believe (which

reasons have to be recorded in writing) that properties ostensibly

standing in the name of a person to whom the Act applies are

illegally acquired properties, he can issue a notice to such a

person. Thereafter, the burden of proving that such property is

not illegally acquired property will be upon the person to whom

notice has been issued. The statutory provisions do not show

that the competent authority, in addition to recording reasons for

his belief, has to further mention any nexus or link between the

convict or detenu (as described in Sub-section (2) of Section 2)

and the property which is sought to be forfeited in the sense that

money or consideration for the same was provided by such

convict or detenu. If a further requirement regarding establishing

any link or nexus is imposed upon the competent authority, the

provisions of Section 8 regarding burden of proof will become

otiose and the very purpose of enacting such a Section would be

defeated.”

18. The statutory framework appears to be founded upon the fact

that the details and particulars as to how a particular property has been

acquired by a person are within his special knowledge. It is for him to

explain as to how he has acquired it, and the source of the funds from

which the property had been acquired.

19. The petitioner was a minor in the year 1985 when the properties

were acquired. He is a younger brother of the detenue. This being the

position, the consistent conclusions and findings of fact reached by the

competent authority as well as the appellate authority do not call for any

interference in these proceedings.

20. Accordingly the present petition is dismissed with costs of

Rs.50,000/-.


W.P. (C)

SHIV NATH CHOUDHARY RAM DASS ....PETITIONER

VERSUS

NDMC & ORS. ....RESPONDENTS

(HIMA KOHLI, J.)


AND 5254/2011 ALONGWITH

W.P. (C) NO. : 2601/2011,

2602/2011, 3052/2011 & ANRS.

Constitution of India, 1950—Article 226—Petition to

restrain the respondent/NDMC from removing the

petitioner from the sites occupied by them till the

enactment of an appropriate legislation, in terms of

the directions issued by the Supreme Court in the

case of Gainda Ram—Respondent contended—Simply

because legislature has not enacted a law, it cannot

be said that there existed a vacuum—In Sodan Singh

case Supreme Court directed for immediate eviction

of unauthorised squatters/hawkers—Held—On the

question of how to ascertain the implication of a

status order passed by a Court in the case of Messrs

Bharat Cocking Coal Limited (supra), it was observed

by the Supreme Court that the expression, ‘status

quo’ is undoubtedly a term of ambiguity and at times,

gives rise to doubt and difficulty and in case any party

has any doubt on the meaning and the effect of the

status quo order, the proper course for such a party

would be to approach the Court that had passed the

status quo order, to seek clarifications—It would not

be appropriate for this Court to grant stay orders in

the face of the status quo order dated 15.07.2011


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579 580Shiv Nath Choudhary Ram Dass v. NDMC & Ors. (Hima Kohli, J.)

passed by the Supreme Court—It was reiterated that

any such order shall be an anti-thesis to the orders

of the Supreme Courts which must be respected both,

in letter and spirit—In such circumstances, any interim

orders to the petitioners declined —However, liberty

granted to both the parties to apply to the Supreme

Court for a clarification of the status quo order dated

15.07.2011 passed in the case of Gainda Ram (supra).

The fountainhead of the dispute in the present cases

therefore remains the status quo order dated 15.7.2011

passed by the Supreme Court. The issue which is sought to

be agitated before this Court is that having regard to the

status quo order, whether a stay order ought to be granted

by this Court in favour of the petitioners/vendors as prayed

for by them, irrespective of their legal status, thus forbidding

the respondent/NDMC from threatening and/or removing

them from the different sites occupied by them in the NDMC

areas. In other words, this Court is being called upon to

examine the meaning, scope and effect of the status quo

order dated 15.07.2011. On the question of how to ascertain

the implication of a status quo order passed by a court, in

the case of Messrs Bharat Coking Coal Limited (supra),

it was observed by the Supreme Court that the expression,

‘status quo’ is undoubtedly a term of ambiguity and at times,

gives rise to doubt and difficulty and in case any party has

any doubt on the meaning and the effect of the status quo

order, the proper course for such a party would be to

approach the Court that had passed the status quo order,

to seek clarifications. (Para 29)

In view of the aforesaid facts and circumstances, this Court

is of the opinion that it will not be appropriate for it to grant

stay orders in the face of the status quo order dated

15.07.2011 passed by the Supreme Court. It is reiterated

that any such order shall be an anti-thesis to the orders of

the Supreme Court, which must be respected both, in letter

and spirit. In such circumstances, the present petitions are

disposed of by declining grant of any interim orders to the

petitioners. However, liberty is granted to both the parties to

apply to the Supreme Court for a clarification of the status

quo order dated 15.07.2011 passed in the case of Gainda

Ram (supra). The parties are left to bear their own costs.

(Para 32)

[Vi Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. B.B. Sawhney, Sr. Advocate

with Mr. Ankan Suri, Mr. Lakshay

Sawhney, Mr. Ankur Suri and Mr.

Sunil Kumar, Advocates for the

Petitioners. Mr. Sumit Kumar Singh,

Mr. Anand Shailani, Mr. Satish

Kumar Tripathi, Mr. N.K. Sahoo,

Mr. R.N. Singh, Mr. M.R. Singh,

Mr. Ramesh K. Mishra, Mr. Surender

Pandit, Mr. Navjot Kumar, Mr.

Mahendra Singh, Mr. Sunder Lal

Juneja, Mr. Pranesh, Mr. B.B. Bhatia,

Mr, Navjot Kumar and Mr. Satish

Chand Gupta, Mr. Pranesh and Mr.

Sahil Kapoor, Ms. S. Fatima, Mr.

Jagdeep Kr. Sharma Ms. Rani

Chhabra, Ms. Rupinder Kaur, Ms.

Ferida Satarawala, Mr. R.N. Singh,

Mr. Vikash Batra, Mr. V.P. Rana

and Mr. Javjot Kumar Advocates for

the petitioners.

FOR THE RESPONDENTS : Ms. Madhu Tewatia, Ms. Sidhi

Arora, Mr. Vinod Kumar, Mr. Arjun

Pant, Mr. Ashutosh Lohia and Mr.

Vinod Wadhwa, Advocates for the

respondent/NDMC. Mr. Najmi

Waziri, Standing Counsel, Mr.

Bhupesh Narula Mr. Sanjay Sahay,

Ms. Farida Satarwal Chopra, Mr.

Sachin Datta, Mr. Abhimanyu Kumar


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for the petitioners/vendors and the respondent/NDMC, it would be

appropriate to set out the aforesaid order dated 15.07.2011, which is the

bone of contention and is reproduced hereinbelow:-

“Heard learned counsel for the applicants and perused the record.

Since judgment of this Court has so far not been implemented,

inasmuch as appropriate legislation has not been enacted by the

competent legislature, we direct the parties to maintain the status

quo as it is obtaining today.”

3. It was the submission of the learned counsel for the respondent/

NDMC that the aforesaid order issued by the Supreme Court, calling

upon the parties to maintain status quo as obtaining on 15.07.2011, can

only be interpreted to mean that the extensive directions issued earlier, on

08.10.2010, in the case of Gainda Ram (supra) reported as (2010) 10

SCC 715 shall continue to remain in operation, including the adjudicatory

mechanism provided for by the NDMC in the scheme presented by it

before the Supreme Court and approved in the said judgment, till the

appropriate government enacts a law for regulating urban street hawkers

and street vendors. It was stated that simply because the legislature has

not enacted a law in this regard on or before 30.06.2011, as directed in

the aforesaid judgment, it cannot be contended by the petitioners/vendors

that there exists a vacuum and the said vacuum can no longer be filled

up by continuing to regulate the vending activities in the NDMC jurisdiction

in the manner as set out in the aforesaid judgment.

4. To give a brief background of the dispute, learned counsel for

the respondent/NDMC walked this Court through some prominent

decisions of the Supreme Court rendered from time to time, which relate

to pavement squatters/hawkers, starting from the decision in the case of

Sodan Singh vs. NDMC & Ors. reported as (1998) 2 SCC 727, the

interim order dated 03.03.2006 passed by the Supreme Court in W.P.(C)

1699/1987 entitled Sudhir Madan & Ors. vs. MCD, the final judgment

in the case of Sudhir Madan (supra) reported as (2009) 17 SCC 597

and lastly, the judgment dated 08.10.2010 passed in the case of Gainda

Ram (supra).

5. Learned counsel for the respondent/NDMC vehemently opposed

the prayer of the petitioners/vendors for grant of interim orders restraining

and Ms. Rachna Sexena, Advocates

for the respondent/GNCTD. Ms.

Navratan Chaudhary, Mr. H.S.

Sachdeva, Mr. D. Rajeshwar Rao,

Mr. Vikram Aggarwal and Mr. Shariq

Mohammad, Advocate for the

respondent/Delhi Police.

CASES REFERRED TO:

1. Mohd. Ismail vs. NDMC & Ors. W.P.(C) 1449/2011.

2. Patri Vyapar Mandal Delhi (Regd.) vs. MCD Town Hall

& Ors. reported as (2009) 12 SCC 475.

3. Sodan Singh vs. NDMC & Ors. reported as (1998) 2

SCC 727.

4. Municipal Corporation of Greater Bombay & Ors. vs.

Indian Oil Corporation Ltd. reported as AIR 1991 SC

686.

5. MCD vs. Gurnam Kaur reported as (1989) 1 SCC 101.

6. Messrs Bharat Coking Coal Limited vs. State of Bihar &

Ors. reported as 1987 (Supp) SCC 394.

7. Sudhir Madan & Ors. vs. MCD, W.P.(C) 1699/1987.

8. Gainda Ram & Ors. vs. NDMC & Ors.,W.P.(C) 1699

RESULT: Petition disposed

HIMA KOHLI, J.

1. This common judgment shall dispose of the petitions filed by the

petitioners/vendors as the issues raised in these writ petitions are common.

For the sake of convenience, facts of W.P.(C) 4743/2011 are taken note

of.

2. The focus of the lengthy arguments addressed by both sides

revolves around an order dated 15.07.2011 passed by the Supreme Court

on some miscellaneous applications presented in W.P.(C) 1699/1987

entitled Gainda Ram & Ors. vs. NDMC & Ors., which matter was

decided on 08.10.2010 by issuing exhaustive directions. Before proceeding

to deal with the respective arguments addressed by the learned counsels


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Shiv Nath Choudhary Ram Dass v. NDMC & Ors. (Hima Kohli, J.) 583 584

described as those who are “tolerated” in the NDMC area. We

fail to understand why any person who violates the law should

be tolerated. Either they should be compelled to obey the law or

the law may be suitably amended, if it is found to create undue

hardship. The problems need to be addressed by the legislature

or the rulemaking authority. We, therefore, observe that if it is

felt that the persons who fall in this category require special

protection, the Act may be suitably amended to cover their cases

or else the number of such illegal squatters may increase from

time to time.

29. There has been no serious objection to the Scheme submitted

by NDMC which is a comprehensive scheme. Certain directions

have, however, been sought for from this Court. We approve the

Scheme submitted by NDMC. 30. It is submitted before us that

the Schemes which have been approved by this Court must be

subject to any Act or rules that may be framed in consonance

with the National Policy on Urban Street Vendors. It goes without

saying that we have approved the Schemes as framed by MCD

and NDMC. If the legislature intervenes and frames another

scheme or regulations governing such Schemes, that will certainly

supersede the Schemes prepared by MCD and NDMC. It is well

settled that any administrative action is always subject to law

that may be framed by the competent legislature. 35. Subject to

the aforesaid modifications/changes in the Schemes submitted by

MCD and NDMC, the same are approved. The said authorities

shall now take appropriate steps to implement the Scheme

forthwith. In case of any difficulty faced by them in implementing

the schemes, they shall have the liberty to apply to this Court.”

8. Lastly, in the recent judgment in the case of Gainda Ram

(supra), learned counsel for the respondent/NDMC specifically relied

upon paras 30, 32, 50 to 66 to state that the Supreme Court was conscious

of the fact that a structured regulation and legislation is urgently required

to control and regulate the fundamental right of hawking. She also pointed

out that the three tier disputes redressal mechanism set out in the affidavit

filed by the then Chairperson of the NDMC was taken note of by the

Supreme Court in para 72 of the aforesaid judgment and in para 73, it

was then observed as below:-

the respondent/NDMC from removing them from the sites occupied by

them till the enactment of an appropriate legislation, in terms of the

directions issued by the Supreme Court in the case of Gainda Ram

(supra). She particularly referred to the observations made by the Supreme

Court in paras 40 and 41 of the judgment in the case of Sodan Singh

(supra), which dealt with the immediate eviction of unauthorized squatters/

hawkers and laid emphasis on the fact that in the said case, the Supreme

Court had directed removal of unauthorized squatters/hawkers without

awaiting final allotment of sites to be allotted to eligible claimants at the

places recommended by the Thareja Committee or suggested by the

NDMC.

6. Again, in the interim order dated 03.03.2006 passed in Sudhir

Madan’s case (supra), the following observation made by the Supreme

Court was highlighted by the counsel for the respondent/NDMC:-

“While we undertake this exercise, we direct the Authorities to

see to it that those persons, who are carrying on hawking activities

or who are squatting on public land without any authority, even

in accordance with the present day scheme in force, are removed

forthwith. This includes unauthorized hawking, squatting on public

streets, footpaths and public parks, including playground. We

direct the Delhi Administration to take steps immediately in

collaboration with MCD and NDMC with necessary assistance

from Delhi Police to clear the roads, streets, footpaths, parks

etc. by unauthorized occupants/squatters/hawkers.”

7. As to the judgment dated 17.05.2007 rendered in the case of

Sudhir Madan (supra), much emphasis was laid by the counsel for the

respondent/NDMC on paras 28 to 30 and 35, which are reproduced

hereinbelow for ready reference:-

“28. The New Delhi Municipal Committee has also submitted its

Scheme. We have considered the Scheme submitted before us.

The area which falls under NDMC does not create problems

such as those in the areas under MCD. However, in the said

Scheme reference has been made to persons who do not have

permission under Section 225 or licence under Section 330 of

the NDMC Act, 1994 but who are unauthorisedly continuing to

carry on business as hawkers/street vendors. They have been


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“73. In paragraph 12 of the affidavit it has been stated that there

shall be an Appellate Authority which shall attend to the redressal

of grievances of squatters, hawkers, traders, residents or any

other person by hearing appeals against the decision of the Vending

Committee (Main). Paragraph 12 of that affidavit is set out below:-

There shall be an Appellate Authority. On the forwarding

of petitions received by the Chairperson, this Authority

shall attend to redressal of grievances of squatters,

hawkers, traders, residents or any other person. The

Authority shall also hear appeals against the decision of

Vending Committee (Main). Decisions of this Authority

unless challenged before a Higher Forum or in any

Competent Court, shall be final. This Authority shall be

initially headed by a person appointed by the Chairperson

having at least 10 years legal or judicial background. There

can be more than one member in this Authority.”

9. After making the aforesaid observations, in paras 74 to 76 of the

judgment, the Supreme Court went on to observe as below:-

“74. In the said affidavit, which was affirmed before this Court

on 24th August, 2010 it has been stated that NDMC shall comply

with the orders which would be passed by the adjudicatory

mechanism contemplated in the scheme and which has been

approved by this Court for the NDMC area, unless such orders

are made subject matter of challenge before a higher forum or

in any other competent Court.

75. In view of such schemes, the hawkers, squatters and vendors

must abide by the Dispute Redressal scheme mentioned above.

There should not be any direct approach to this Court by way

of fresh petition or IAs, bypassing the Dispute Redressal

Mechanism provided in the scheme.

76. However, before 30th June, 2011, the appropriate Government

is to enact a law on the basis of the Bill mentioned above or on

the basis of any amendment thereof so that the hawkers may

precisely know the contours of their rights.”

10. It was thus sought to be contended on behalf of the respondent/

NDMC that there can be no vacuum as far as regulation of trade of street

hawkers/vendors in the NDMC jurisdiction is concerned and the failure

on the part of the legislature to abide by the timeline set out by the

Supreme Court in the case of Gainda Ram (supra), by putting in place

a statute on or before 30.06.2011, cannot be interpreted by the petitioners/

vendors to mean that they can continue their trade unhindered at any

place of their choice in the NDMC jurisdiction, in an unregulated manner

and without any obstruction or objection from the NDMC.

11. Learned counsel for the respondent/NDMC particularly referred

to paras 74 and 75 of the aforesaid judgment to state that the dispute

redressal scheme, noticed by the Supreme Court in para 75 was the one

that was legally functioning in NDMC jurisdiction and which was taken

note of by the Court in the preceding para 74. In other words, she stated

that the scheme as set out in the affidavit dated 24.08.2010, filed by the

then Chairperson of NDMC before the Supreme Court in Gainda Ram’s

case (supra), was the one which was finally approved by the Supreme

Court. She further submitted that assuming, without admitting, that the

dispute redressal scheme set out by the NDMC had lapsed on 30.6.2011,

as claimed by the petitioners, then the NDMC Act provides an adequate

fallback to ensure orderly management of vendors in the area. Specific

reference was made in this regard to the provisions contained in Sections

221, 224, 225 and 226 of the said Act.

12. It was further argued by the counsel for the respondent/NDMC

that the application filed by the NDMC before the Supreme Court in July

2011 praying inter alia for extension of time to regulate hawkers/squatters

in the NDMC area, as per the scheme mentioned in the judgment in

Gainda Ram’s case (supra), till the enactment of a law by the legislature

in that regard, had not yet been finally disposed of by the Supreme Court

at the time of passing of the status quo order dated 15.07.2011 and

similarly, the other application filed by one of the hawkers/vendors praying

inter alia for restraining the respondent/NDMC from granting Tehbazari

rights to the winners of the lucky draw of lots for allotment, which was

to be held on 12.05.2011 or any date thereafter, was also pending

consideration before the Supreme Court. Hence, no finality could be

attached to the order dated 15.7.2011 which can only be considered an

interim measure till the final disposal of the aforesaid applications or the

enactment of a legislation.


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13. On merits, learned counsel for the respondent/NDMC referred

to the affidavit dated 01.08.2011 filed by the Director (Enforcement),

NDMC, wherein it was stated that pursuant to the public notice issued

by the NDMC inviting applications under the NDMC Urban Street Vending

Scheme in the year 2007, the respondent/NDMC had received 4367

applications. The documents required by the applicants for registration

under the Scheme included a proof of age, documentary proof/affidavit

for the purpose of annual income, proof of residence, proof in support

of special categories like handicapped, Kashmiri migrants etc. and proof

of squatting in the NDMC area, if any. In para 4 of the aforesaid

affidavit, the following criteria approved/adopted by the Vending Committee

to shortlist the eligible applicants is set out:-

“4. That the criteria approved/adopted by the Vending Committee

to shortlist the eligible applicants is as under:-

(i) The applicants should be resident of Delhi with his name

registered in electoral rolls as per abstract of photo E-Roll or

ERO certificate.

(ii) The applicant should be a major, viz. with over 18 years of

age as per valid birth certificate or age certificate or school

certificate etc.

(iii) The applicant should be a needy as per income records of

DC (Revenue) or as vulnerability records of Government of

NCT of Delhi (Samajik Suvidha Sangam: vulnerable and most

vulnerable category).

(iv) The applicant should be registered as per NDMC Street

Vendors Scheme. The policy verification of the applicant should

be available.

(v) The applicant or his dependent family member should not be

employed or should not have any other tehbazari/vending or any

other business premises in Delhi as per record verification of

NDMC/MCD.

(vi) Preference will be given to applicants who are physically

handicapped or widows or senior citizens above 60 years or

Kashmiri migrants or SC/ST (necessary certificate to be submitted

and relaxation may be given in the above criteria).”

14. As per the respondent/NDMC, the category-wise list of eligible

shortlisted applicants in terms of the aforesaid criteria totalled to 3878

applicants. The affidavit dated 01.08.2011 states that the respondent/

NDMC has identified 183 new spaces, in addition to the 203 remaining

spaces identified by the Thareja Committee in the NDMC area, which

were available for allotment, thus taking the total number of available

spaces to 386. It was further stated that due to factors like de-listing of

the Parliament Street on security grounds, construction of flyovers and

Metro Stations at various locations in the NDMC jurisdiction, the number

of authorized tehbazari squatters has changed from 348 to 404 in number.

The number of applicants, who the respondent/NDMC claims, are vending

unauthorisedly at Connaught Place, Sarojini Nagar, Parliament Street and

Janpath areas and in whose favour, status quo orders are operating, is

stated to be 323 in number. The affidavit asserts that simply because the

names of the petitioners, who are registered with the NDMC, figure in

the eligibility list drawn by the respondent/NDMC, cannot be treated as

proof of their regularly vending in the NDMC area and nor does it confer

on them any enforceable vested right to ensure a vending space for them

in the NDMC area, which is directly dependent on the number of spaces

available. Thus, it was contended that neither the possession of any

number of challans, nor the absence thereof can make a difference, for

the reason that challans cannot form the basis for the petitioners to claim

any vested legal right to squat at a given space.

15. Counsel for the respondent/NDMC asserted that the present

petitions are not maintainable inasmuch as the petitioners have an equally

efficacious alternate remedy of approaching the appellate authority

constituted by the Chairperson, NDMC, for redressal of their grievances

and failure on their part to have approached the Vending Committee is

not on account of the fact that the said Committee including the appellate

authority is not functioning, but because they have found it more

convenient to bypass the aforesaid forum and approach this Court directly,

which is not permissible. She stated that extensive measures have been

taken by the respondent/NDMC to constitute the adjudicatory mechanism

by way of a three tier system in the following manner:-

1. Vending Sub-Committee (Site of Spaces),

2. Vending Sub-Committee (Heath and Hygiene) and

3. Vending Sub-Committee (Enforcement).


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16. She stated that the creation of the aforesaid three Vending Sub-

Committees, Vending Committee (Main), as also of the appellate authority

which was constituted to redress the grievances of the squatters, hawkers,

traders, residents or any other person against the decision of the Vending

Committee (Main), was placed before the Supreme Court for consideration

and the said three tier adjudicatory mechanism was duly approved in the

judgment of Gainda Ram (supra).

17. Per contra, learned counsels for the petitioners/vendors, who

appeared on different dates, vehemently opposed the aforesaid stand

taken by the respondent/NDMC and asserted that the scheme floated by

the respondent/NDMC for regulating vending activities in its jurisdiction

had lapsed on 30.06.2011 in the absence of the enactment of a legislation

as per directions of the Supreme Court in the case of Gainda Ram

(supra) and as on date, there is no scheme in existence. It was canvassed

that the implication of the aforesaid order of status quo passed by the

Supreme Court on 15.07.2011 can only mean that irrespective of the fact

whether the squatting is legal or illegal, the same be permitted to continue

on an ‘as is where is’ basis, and such status quo is to be maintained by

all the parties till a law is framed by the legislature.

18. Mr. B.B. Sawhney, Sr. Advocate appearing for the petitioners/

vendors submitted that in the case of Gainda Ram (supra), the Supreme

Court had directed that the appropriate government must enact a law on

or before 30.06.2011 so that the hawkers may precisely know the contours

of their rights, hence the dispute redressal mechanism provided for in the

scheme mentioned in the aforesaid judgment could operate only upto

30.06.2011 and thereafter, the said scheme would automatically stand

lapsed. He stated that no other interpretation can be given to the order

dated 15.07.2011, directing maintenance of status quo, in view of the

qualifying words, “as it is obtaining today”. He argued that if the scheme

was continuing to operate, as claimed by the learned counsel for the

respondent/NDMC, then there was no good reason for the respondent/

NDMC to have refrained from holding a draw of lots, which was slated

for the same day, i.e., 15.07.2011, and that fact of the matter is that even

the respondent/NDMC had understood the status quo order to mean that

there is no scheme in place after 30.6.2011, for the reason that in para

68 of the aforesaid judgment in the case of Gainda Ram (supra), all the

writ petitions and the interim applications filed before the Supreme Court

were disposed of with clear and specific directions that the problem of

hawking and street vending could be regulated by the schemes framed

by the NDMC and MCD only upto 30.06.2011 and not thereafter. It was

asserted on behalf of the petitioners/vendors that as on date, the directions

of the Supreme Court that status quo is to be maintained by the parties

can only be given one interpretation, which is that till a law is ultimately

enacted by the Parliament, irrespective of their legal status, all the

petitioners/vendors would be permitted to continue squatting/hawking at

the sites that have been occupied by them.

19. Insofar as the composition of the dispute redressal mechanism

is concerned, learned Senior Advocate for the petitioners submitted that

contrary to the understanding of the respondent/NDMC, the scheme

reproduced at paras 72 and 73 in the judgment in the case of Gainda

Ram (supra), was not the one which was actually recognized by the

Supreme Court, and rather it is the dispute redressal scheme mentioned

in para 75 of the aforesaid judgment i.e., a scheme for urban street

vendors for NDMC area as formulated in the year 2006, which was

ultimately approved by the Supreme Court on 17.05.2007, in the case of

Sudhir Madan (supra), which is the scheme which finds mention

specifically in the following para 74 and is the one approved by the

Supreme Court. It was contended that even otherwise, the National

Capital Territory of Delhi Laws (Special Provisions) Act, 2011 (hereinafter

referred to as ‘Special Provisions Act’) comes to the rescue of the

petitioners for the reason that sub-clause (2) of Section 3 of the Special

Provisions Act mandates maintenance of status quo as on 01.01.2006,

notwithstanding any judgment, decree or order of any court, in respect

of encroachment or unauthorized development. Thus, it was submitted

on behalf of the petitioners/vendors that they were entitled to grant of

interim protection till the enactment of a legislation to regulate hawking/

vending activities in urban streets in Delhi on the basis of the National

Policy on Urban Street Vendors, 2009 framed on 17.06.2009 and the

Special Provisions Act.

20. With reference to the Special Provisions Act, learned Senior

Advocate for the petitioners stated that the phrase, “unauthorized

development” used in the definition clause has to be seen in the same

context as the one in which the phrase “encroachment” has been defined,

wherein it is mentioned that putting up of temporary, semi-temporary or


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permanent structure for residential use or commercial use or any other

use, and the placement of goods on the pavements by the petitioners is

liable to be termed as unauthorized use for maintaining status quo under

the Special Provisions Act. Much emphasis was laid on the averments

made by the respondent/NDMC in its interim application filed before the

Supreme Court in Gainda Ram’s case (supra) in July 2011, to submit

that the respondent/NDMC itself had stated in the said application that the

scheme had lapsed and therefore, the only interpretation that can be given

to the status quo order passed by the Supreme Court on 15.07.2011 can

be that no scheme would exist after 30.06.2011 and thus, the benefit of

the Special Provisions Act ought to be extended to the petitioners. He

submitted that the phrase ‘street vendors’ has been clearly defined under

the National Policy on Urban Street Vendors, 2009. Reliance was placed

in the case of Patri Vyapar Mandal Delhi (Regd.) vs. MCD Town Hall

& Ors. reported as (2009) 12 SCC 475 and the provisions of the Special

Provisions Act to submit that even the Supreme Court had recognized the

fact that the Special Provisions Act is the only Central law governing the

field and it would have primacy over other Statutes and administrative

orders. It is thus stated that the provisions of the NDMC Act cannot be

invoked by the respondent/NDMC as the said Act is not in consonance

with Article 96 of the Constitution of India and furthermore, the Special

Provisions Act being valid till the end of December 2011, no orders in

derogation of the provisions of the said Act can be passed.

21. Mr. S.K. Tripathi, Advocate appearing for some of the petitioners/

vendors sought to embellish the submissions of Mr.Sawhney, Sr.Advocate

and relied on the orders passed in W.P.(C) 1449/2011 entitled Mohd.

Ismail vs. NDMC & Ors. to urge that the “Appellate Authority” constituted

under the dispute redressal mechanism for the NDMC area, has not been

functioning, which fact he stated is borne out from a perusal of the order

dated 08.03.2011 passed in the aforesaid case, wherein the Court took

notice of the claim of the petitioner/vendor therein to the effect that

inspite of orders passed by the Appellate Authority allowing squatting at

a particular site, till a final determination by the Vending Committee as

to his eligibility, the respondent/NDMC and the police were disturbing his

activities. In the aforesaid order, the statement of the counsel for the

respondent/NDMC was recorded to the effect that the appellate authority,

whose order was being relied upon by the petitioner therein, was constituted

initially for the MCD areas and later started functioning for the NDMC

areas as well for the reason that at that time, there was no separate

appellate authority for the NDMC areas, but subsequently, in accordance

with the scheme approved by the Supreme Court, the Chairperson, NDMC

had constituted a separate appellate authority for the NDMC areas.

Therefore, the appellate authority appointed earlier had ceased to have

jurisdiction qua the NDMC areas. It was thus contended on behalf of the

petitioners/vendors that the aforesaid order clearly indicates that the

appellate authority in the NDMC areas is not functioning.

22. Reliance was also placed on the minutes of the meeting of the

Vending Committee dated 11.03.2010, to claim that if the fact of whether

there was actual squatting/vending was verified by the Committee and if

the names of the petitioners/vendors figured in the eligibility list prepared

by the respondent/NDMC for holding the draw of lots, then it did not lie

in the mouth of the respondent/NDMC to claim that the petitioners, who

had been verified and found to be eligible, were not entitled to squat at

various sites in the NDMC area after 30.06.2011.

23. In rebuttal, counsel for the respondent/NDMC disputed the

contentions of the petitioners/vendors and while reiterating her earlier

submissions, asserted that the petitioners did not have any legally

enforceable right, created on the basis of the eligibility list drawn by

NDMC, for claiming grant of interim orders in their favour. She again

referred to paras 68, 69, 75, 76 and 78 of the judgment in the case of

Gainda Ram (supra), to emphasize that when the aforesaid paras are

read collectively, it is clear that the petitioners cannot claim an entitlement

to any interim orders as sought by them in the present proceedings. She

further stated that even otherwise, the Special Provisions Act relied upon

by the petitioners has duly recognized the schemes prepared by the local

authorities in the National Capital Territory of Delhi for regulation of

urban street vendors. To substantiate the said submission, she drew the

attention of this Court to the preamble of the aforesaid Act, which

mentions the fact that all the schemes prepared by the local authorities

in the National Capital Territory of Delhi, for regulation of urban street

vendors in accordance with the National Policy on Urban Street Vendors,

2009 and the Master Plan for Delhi 2021, have been implemented and

further that more time is required for proper implementation of the

schemes regarding hawkers and urban street vendors.


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(Protection of Livelihood and Regulation of Street Vending) Bill, 2009

introduced by the Government of India, Ministry of Housing & Urban

Poverty Alleviation. She stated that nothing new is now being submitted

by the petitioners/vendors herein, for the present petitions to be entertained

for any purpose whatsoever and all the grievances raised by the petitioners

can easily be addressed before the Vending Committee/appellate authority

under the scheme relating to urban street vending in the NDMC area,

which fora continue to remain functional, even after 30.6.2011.

26. This Court has heard these matters at length since 17.8.2011,

on different dates. Various counsels for the petitioners/vendors and the

Standing Counsel for the respondent/NDMC had addressed the Court.

Their respective arguments have been taken note of. Both sides have

made strenuous efforts to explain what the status quo order dated

15.7.2011 passed by the Supreme Court in the case of Gainda

Ram(supra) implies. The leitmotif of the arguments addressed on behalf

of the petitioners/vendors is that the status quo order read with the

qualifying words, “as it is obtaining today”, suffixed to the order, can

only be read to imply that as on date, i.e., 15.7.2011, there was no

scheme operational in the NDMC areas to regulate vending activities and

till a law is ultimately enacted by the legislature, all the petitioners,

irrespective of their legal status, can continue squatting/hawking at different

sites that have been occupied by them. It is also asserted that in the teeth

of the status quo orders passed by the Supreme Court, the respondent/

NDMC in collusion with the police authorities, is threatening to illegally

remove the petitioners/vendors from different sites, which is detrimental,

adverse, harassing and belligerent to those, who have been found eligible

by the respondent/NDMC for being allotted specific tehbazari spaces

within the NDMC jurisdiction, but are being threatened due to lack of

further action in this regard which is pending at the end of the respondent/

NDMC. The second limb of submissions made by the learned counsels

for the petitioners/vendors was that the Special Provisions Act would

additionally come to the rescue of the petitioners/vendors, which also

requires maintenance of status quo as existing on 01.10.2006, till the end

of December, 2011.

27. On the other hand, the main thrust of the arguments addressed

by the counsel for the respondent/NDMC was that as the legislature has

failed to enact an appropriate legislation in terms of the decision of the

24. A specific reference was made by the learned counsel for the

respondent/NDMC to Section 2(1)(c) of the Special Provisions Act,

which defines the phrase “encroachment” to claim that it does not cover

the petitioners herein, who are squatters. Further reference was made to

the provision of Section 3 of the Special Provisions Act, which contains

a non obstante clause, to state that status quo with regard to the

encroachment or unauthorized development as on 01.01.2006, mentioned

in the said provision, was in the context of the definition of the phrases

“encroachment” and “unauthorized development” set out in the definition

clause at Sections 2(1)(c) and 2(1)(i) respectively of the Special Provisions

Act and thus, the petitioners/vendors did not qualify under the aforesaid

enactment for claiming protection as none of the ingredients set out in

the provisions of the aforesaid enactment are found to exist in their case.

It was submitted that the Special Provisions Act, which came into effect

in the year 2007 and has been extended from time to time and lastly, till

December 2011, does not give permission to persons to re-start any

activity once they have been removed by the civic authority and similarly,

the Scheme of 2009 does not entitle the registrants to squat unless they

have been allotted a specific site. In support of the aforesaid submission,

reliance was place on the judgment in the case of MCD vs. Gurnam

Kaur reported as (1989) 1 SCC 101. For the purpose of interpreting the

meaning of the phrase, “structure”, reference was made to the judgment

of the Supreme Court in the case of Municipal Corporation of Greater

Bombay & Ors. vs. Indian Oil Corporation Ltd. reported as AIR

1991 SC 686. For the purpose of understanding the expression, ‘status

quo’, reference was made to the judgment in the case of Messrs Bharat

Coking Coal Limited vs. State of Bihar & Ors. reported as 1987

(Supp) SCC 394 to submit that in ordinary legal connotation, the term

‘status quo’ implies the existing state of things at any given point of time.

25. As for the National Policy on Urban Street Vendors, counsel for

the respondent/NDMC stated that both, the 2004 policy and the 2009

policy, find mention in the decision of the Supreme Court in the case of

Gainda Ram (supra) and it was only after taking into consideration the

said policies, did the Court directed the institutionalization of urban street

vending through legislation. It was further stated that at the time of

delivering the judgment dated 8.10.2010, the Supreme Court took notice

of the NCT of Delhi Laws (Special Provisions) Act, 2009, which was

valid upto 30.12.2010, apart from noticing the Model Street Vendors


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Supreme Court in the case of Gainda Ram(supra), the subsequent order

dated 15.7.2011 directing parties to maintain the status quo as it is

obtaining on the said date can only imply that the state of affairs as

existing on date are not to be disturbed, until the rights of the parties can

be finally determined through legislation. It was submitted that while

passing the status quo order on 15.07.2011, the Supreme Court was

conscious of the fact that the Parliament had yet to enact a comprehensive

legislation to regulate urban street vending and in such circumstances, it

goes without saying that it was the intent of the Court that the entire

dispute redressal mechanism as recognized in the case of Gainda

Ram(supra) would continue to remain in operation, so as to regulate the

urban street vending in the NDMC area, till the legislation in that regard

is enacted. Further, it was stressed that the Special Provisions Act did

not provide any protective umbrella to the petitioners, whose squatting

activities neither fell under the definition of “encroachment”, nor under

“unauthorized development”. It was further asserted that even otherwise

pending an appropriate legislation, the NDMC Act was available as a fall

back option and the relevant provisions in the said enactment would

continue to regulate street vending activity in the NDMC area and the

petitioners/vendors could not claim a vested right to squat at any site of

their own.

28. From the above, it is apparent that arguments and counter

arguments have been raised by both sides on their respective versions of

the meaning and the effect of the status quo order dated 15.7.2011

passed by the Supreme Court. It is also very apparent, that the meaning

sought to be attributed by both sides as to the implication of the said

status quo order, is diametrically opposed to each other. Not only this,

both sides are at a tangent on the factum of the pendency or otherwise

of the interim applications filed before the Supreme Court by both, the

applicants/vendors and the respondent/NDMC, for clarifications, on which

the aforesaid order came to be passed as it is the stand of the respondent/

NDMC that the aforesaid applications were not disposed of while passing

the order dated 15.7.2011. The parties are poles apart on the question of

import of the status quo order, and the effect of the observations made

by the Supreme Court in the case of Gainda Ram(supra) as regards the

approval of NDMC scheme. They are also at loggerheads on the

composition of the adjudicatory mechanism in the NDMC jurisdiction

and the manner of its functioning, as also the identity of the scheme

which is validly operating in the NDMC areas for regulating urban street

vending, which had all been subject matter of consideration before the

Supreme Court in the aforesaid case. The other issues agitated by the

parties, starting from the interpretation of the various observations made

by the Supreme Court in the aforesaid judgment, to the formulation of

the scheme as approved by the Supreme Court in the case of Sudhir

Madan (supra), to the composition of the disputes redressal mechanism

and its validity as also the meaning of the status quo order, are all in a

turmoil as both the parties have stoutly defended their respective stands

which are completely at variance with each other. The only common

ground shared by the parties is the factum of passing of the recent

judgment dated 08.10.2010 in the case of Gainda Ram(supra) and the

subsequent status quo order dated 15.7.2011 passed by the Supreme

Court.

29. The fountainhead of the dispute in the present cases therefore

remains the status quo order dated 15.7.2011 passed by the Supreme

Court. The issue which is sought to be agitated before this Court is that

having regard to the status quo order, whether a stay order ought to be

granted by this Court in favour of the petitioners/vendors as prayed for

by them, irrespective of their legal status, thus forbidding the respondent/

NDMC from threatening and/or removing them from the different sites

occupied by them in the NDMC areas. In other words, this Court is

being called upon to examine the meaning, scope and effect of the status

quo order dated 15.07.2011. On the question of how to ascertain the

implication of a status quo order passed by a court, in the case of

Messrs Bharat Coking Coal Limited (supra), it was observed by the

Supreme Court that the expression, ‘status quo’ is undoubtedly a term

of ambiguity and at times, gives rise to doubt and difficulty and in case

any party has any doubt on the meaning and the effect of the status quo

order, the proper course for such a party would be to approach the

Court that had passed the status quo order, to seek clarifications.

30. In the case at hand, while seeking to ride the wave of the

aforesaid status quo order, the parties have chosen to overlook one

important factor, which is that a status quo order operates on both sides.

The Supreme Court has passed orders requiring both sides to maintain

status quo. Once such an order of the Supreme Court is on record, the

same not only binds all the parties to the adjudication, and all the parties,

civil or judicial who are required to act in accordance with the said


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orders, but it equally binds the High Court from interfering with such an

order, as the said order has been passed in litigations before the highest

Court of the land.

31. The orders of the Supreme Court are on record. The status quo

order is a clear signal to the High Court as well, to avoid granting any

order, including an interim order, when the Supreme Court has directed

for status quo to be maintained. In such circumstances, if this Court was

to grant a stay order in favour of the petitioners/vendors arrayed before

it, it would be tantamount to negating the orders of the Supreme Court,

which require the parties to maintain status quo pending enactment of

appropriate legislation. If either of the parties were unclear about the

interpretation of the status quo order, it was for them to have applied to

the Supreme Court for clarifications thereof. Additionally, the reliance

placed by the petitioners/vendors on the Special Provisions Act seeking

interim legal sanctity to the placement of goods by them on the pavements,

by terming it as encroachment/unauthorized use, as recognized under the

said Act and their contention that the Supreme Court had recognized the

fact that the Special Provisions Act is the only Central law having primacy

over other Statutes, are also matters that the petitioners/vendors ought to

have placed before the Supreme Court while seeking clarifications of the

status quo order. It would therefore be advisable for the petitioners/

vendors as also the respondent/NDMC to approach the Supreme Court

and make their submissions there as regards their grievances. However,

as both parties insisted that their arguments be taken note of and their

submissions be placed on record, some pains have been taken to do the

needful.

32. In view of the aforesaid facts and circumstances, this Court is

of the opinion that it will not be appropriate for it to grant stay orders

in the face of the status quo order dated 15.07.2011 passed by the

Supreme Court. It is reiterated that any such order shall be an anti-thesis

to the orders of the Supreme Court, which must be respected both, in

letter and spirit. In such circumstances, the present petitions are disposed

of by declining grant of any interim orders to the petitioners. However,

liberty is granted to both the parties to apply to the Supreme Court for

a clarification of the status quo order dated 15.07.2011 passed in the

case of Gainda Ram (supra). The parties are left to bear their own

costs.


CRL. M.C.

VED PRAKASH ....PETITIONER

VERSUS

SRI OM ....RESPONDENT

(SURESH KAIT, J.)

CRL. M.C. NO. : 2258/2011 DATE OF DECISION: 31.10.2011

Indian Penal Code, 1860—Section 402, 406, 506—Code

of Criminal Procedure, 1973-204, 256—Respondent

filed complaint under Section 402, 406, 506 IPC against

petitioner—In pre Summoning evidence, he examined

himself and one more witness who was not named in

list of witnesses as his witness—Summoning order

was passed by learned Metropolitan Magistrate and

case was listed for pre-Summoning evidence—

Aggrieved by summoning order, petitioner challenged

it and urged, one of the witness namely Sh. Raj Singh

examined at pre summoning stage, was not named in

list of witnesses which caused injustice to

respondent—Also, on other grounds summoning was

bad in law—Held:- Non-compliance of Section 204 (1A)

is not an illegality which renders subsequent

proceedings null & void, but it is a curable irregularity—

If no prejudice is caused to accused, trial shall not be

vitiated.

I am of the opinion that even if filing of the list of witnesses

is contemplated by sub-Section (2) of Section 204 and is

considered to be mandatory, the provisions contained in

Section 465 of Code have to be taken into consideration

before declaring the issue of process as illegal. This Section

465 of the new Code is equivalent to Section 537 of the old

code and it provides that no finding, sentence or order


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599 600Ved Prakash v. Sri Om (Suresh Kait, J.)

passed by a court of competent jurisdiction shall be reversed

or altered by a Court of appeal or Revision on any error or

omission or irregularity in the complaint, summons, warrants,

proclamation, order, judgment or every proceedings before

or during the trial unless in the opinion of appellant or the

revision court if failure of justice is in fact opened occasioned

thereby. (Para 31)

Important Issue Involved: Non-compliance of Section 204

(1A) is not an illegality which renders subsequent proceedings

null & void, but, it is a curable, irregularity—If no prejudice

is caused to accused, trial shall not be vitiated.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. T.L. Garg, Advocate.

FOR THE RESPONDENT : Mr. R.P. Kaushik, Advocate.

CASES REFERRED TO:

1. Bhagwati Prasad vs. Chandramaul 1996 2 SCR 286.

2. Ram Sarup Gupta vs. Bishun Narain Inter College and

others 1987 2 SCC 555.

3. Sunil Akhya Chaudhary vs. H.M. Zadwet reported in

MANU/WB/00050/1968.

4. State of Bombay vs. Janardhan and others AIR 1960

Bom 513.

5. Ali Jan vs. Amir Khan 1957 Cri LJ 630.


SURESH KAIT, J.

1. Vide this petition, learned counsel for the petitioner has assailed

the summoning order dated 20.01.2005 passed by learned MM in CCNo.

22/03.

2. He has submitted that as per the list of witnesses submitted by

the complainant, following were made witnesses in the complaint:-

2. Complainant.

2. Sh. Jagdish Singh

3. Sh. Inderjit.

4. Sh. Dharambir Singh.

5. Sh. Daya Nand.

6. Clerk, from M/s Motor General Finance company.

7. Any other or further witness with the prior permission of

the Hon’ble Court.

3. He has further submitted that CW 2 Mr. Raj Singh s/o Late Sh.

Subey Singh R/o H.No. 377, Kanjawala, Delhi 81; was examined on

28.09.2004 without being in list of witnesses and on his deposition the

aforesaid impugned summoning order was passed.

4. Learned counsel for the petitioner had taken a legal plea that as

per the list of witnesses, the complainant in Caluse7 has stated “any other

or further witness with the prior permission of the Hon’ble Court” whereas

CW 2 Raj Singh was examined without the prior permission of the court,

which is bad in law.

5. Learned counsel for the petitioner based on the aforesaid

submissions has relied upon the judgment State of Bombay v. Janardhan

and others AIR 1960 Bom 513, wherein it was observed as under:-

“.........Witnesses mean only those mentioned in list under

S.204(IA) by complainant. Complainant is restricted to the

examination of witnesses whose names are given in the list

under section 204(IA).....”.

“......The object of giving a list of witnesses, as provided

in S.204(1A), is to give notice to the accused of the names

of the witnesses for the complainant so that accused can

prepare for their cross-examination. If witnesses not named

in the list referred to in S.2049(IA) are allowed to be

examined by the complainant the object of the Legislature

in adding the new S. 204(IA) would be defeated. After the

insertion of S.204(IA), S 256 has to be read along with S.

252 also with S. 204(IA). Therefore, in my opinion, in cases

instituted otherwise on a police report the complainant is


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Ved Prakash v. Sri Om (Suresh Kait, J.) 601 602

restricted to the examination of witnesses whose name are

given in the list under S. 204(IA)......”

6. Admittedly, the complaint was filed under Section 402/406/506

IPC on 18.11.2000. CW1 Sh. Om was examined in pre-summoning

evidence on 06.04.2004.

7. Thereafter, vide order dated 20.01.2005, learned MM passed the

impugned summoning order. Thereafter, the case was listed for pre-

summoning evidence on 24.10.2010.

8. Facts stated in the complaint relating to offence under Section

506 IPC are mentioned in para 7 of the impugned order, which reads as

under:-

“The complaint met with accused 2 and 3 in order to show

the letter received from the finance company. These directors

declined to pay the instalments as agreed earlier initially and also

to pay anything to the complainant in lieu of plying of the vehicle.

When the complainant further insisted and stated to approach the

authorities and the court for getting justice and money which he

invested on the promise and inducement of the accused persons.

These aforesaid directors threatened the complainant on

12.12.1998 at the gun point to kill the complainant in case he

dared to take any such action stated above. The complainant

return back his house and contacted 7 other persons who also

invested their money on their promise and inducement by the

accused persons like that of the complainant.”

9. Respondent has filed his reply which states that Chapter XV of

the Code deals with the complaint made to the Magistrate. It starts with

Section 200 which provides that Magistrate taking cognizance of an

offence on complaint shall examine upon oath the complainant and the

witnesses present, if any, and the substance of such examination shall be

reduced to writing and shall be signed by the complainant and the

witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the

Magistrate need not examine the complainant and the witnesses-

(a) If a public servant acting or purporting to act in the discharge

of his official duties or a court has made the complaint; or

(b) If the Magistrate makes over the case for inquiry, or trial to

another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to

another Magistrate under section 192 after examining the

complainant and the witnesses, the latter Magistrate need not re-

examine them.

10. Section 202 of Cr.P.C. provides postponement of issue of

process, whereas Section 203 provides dismissal of complaint. Section

204 provides issue of process, whereas sub-clause (2) provides no

summons or warrants shall be issued against accused under Section (1)

Sub-section (1) until a list of prosecution witnesses have been filed.

11. The Petitioner’s main emphasis is that one Raj Singh has been

examined in pre-summoning stage, though his name did found place in

the list of witnesses. Thus, so far as the respondent has caused injustice

to the petitioner and as such the summoning is bad in law.

12. The second ground taken by the petitioner is that the complainant

has not stated anywhere about the petitioner Ved Prakash even though

he has been summoned under Section 506 IPC.

13. Further, it is stated, the scheme of Chapter XV of Cr.P.C. is

very clear and provides for examination of the complainant and his

witnesses after taking cognizance of complaint on oath before the summons

are issued to accused persons. It is stated that in the present case, the

complainant was examined along with another witness present in the

court at the time of examination.

14. Learned Magistrate examined the witness namely Raj Singh as

per provision of Section 200 and thereafter, order for summoning of

accused persons.

15. Further, it is stated that the list of witnesses as required under

Section 204 (2) Cr.P.C. has also been filed before summons were issued,

as such there is no illegality or non compliance of any of the requirement

contemplated under Section 204 of Cr.P.C.

16. It is further stated that the purpose of filing of list of witnesses

is to make aware the accused persons about the nature of the evidence

which may be adduced against them during the proceedings. In the


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instant case, the witness Raj Singh was also examined in pre-summoning

stage, which followed the summoning of the accused. So question of

accused persons not knowing the name of the witness namely Raj Singh

is not sustainable and as such no prejudice has been caused to accused

persons. Moreover, the purpose of the filing of list of witnesses has been

served.

17. Learned counsel for the respondent has relied upon a case of

Abdul Hafiz V. GHulam Mohi-ud-din 1997 Cri LJ 591 and Kanhu Ram

V. Durga Ram 1980 Cri LJ 518, it has been held that omission to file list

of witnesses does not vitiate the proceedings if the purpose otherwise is

served. The omission is regularly curable under Section 465 Cr.P.C.

18. Further, he has relied upon another Judgment in a case of Ali

Jan V. Amir Khan 1957 Cri LJ 630, wherein, it has been held that the

complainant can file second or even three list of witnesses and non-

incorporating any name does not vitiate the proceedings.

19. As relied upon by the learned counsel for the petitioner in the

case of Janardan (supra) decided by Bombay High Court, wherein it is

clearly observed that the object of giving a list of witness as provided in

Section 204 (1 A) is to give notice to the accused of the names of the

witnesses for the complainant so that the accused can prepare for their

cross-examination. If witnesses not named in the list referred to in S.

204 (1A) are allowed to be examined by the complainant the object of

the Legislature in adding the new S. 204 (1A) would be defeated. After

the insertion of S. 204 (1A), S. 256 has to be read along with S. 252

also with S. 204 (1A), Therefore, the cases instituted otherwise on a

police report the complainant is restricted to the examination of witnesses

whose names are given in the list under S. 204 (1A).

20. In the present case, the complainant has been examined and one

witness CW2, Sh. Raj Singh has also been examined and thereafter,

learned Magistrate has issued summons against the petitioner.

21. It has been decided in Ram Sarup Gupta V. Bishun Narain

Inter College and others 1987 2 SCC 555 that in the absence of

pleading, evidence if any, produced by the parties cannot be considered.

It is also equally settled that no party should be permitted to travel

beyond its pleading and that all necessary and material facts should be

pleaded by the party in support of the case set up by it. The object and

purpose of pleading is to enable the adversary party to know the case it

has to meet. In order to have a fair trial it is imperative that the party

should settle the essential material facts so that other party may not be

taken by surprise. The pleadings however should receive a liberal

construction; pedantic approach should be adopted to defeat justice on

hair –splitting technicalities. Sometimes, pleadings are expressed in words

which may not expressly make out a case in accordance with strict

interpretation of law. In such a case it is the duty of the court to

ascertain the substance of the pleadings to determine the question. It is

not desirable to place undue emphasis on form, instead the substance of

the pleadings should be considered. Whenever the question about lack of

pleading is raised the enquiry should not be so much about the form of

the pleadings; instead the court must find out whether in substance the

parties knew the case and the issues upon which they went to trial. Once

it is found that in spite of deficiency in the pleadings parties knew the

case and they proceeded to trial on those issues by producing evidence

in that event it would not be open to a party to raise the question of

absence of pleadings in appeal.

22. As decided by Constitution Bench of Supreme Court in a case

of Bhagwati Prasad V. Chandramaul 1996 2 SCR 286 while considering

this question observed as under :-

If a pleas is not specifically ade and yet it is covered by an issue

by implication, and the parties knew that the said plea was involved

in the trial, then the mere fact that the plea was not expressly

taken in the pleadings would not necessarily disentitle a party

from relying upon it if it is satisfactorily proved by evidence.

The general rule no doubt is that the relief should be founded on

pleadins made by the parties. But where the substantial matters

relating to the title of both parties to the suit are touched, though

indirectly or even obscurely in the issues, and evidence has been

led about them, then the argument that a particular matter was

nto expressly taken in the pleadings would be purely formal and

technical and cannot succeed in every case. What the court has

to consider in dealing with such an objection s : did the parties

know that the matter in question was involved in the trial, and

did they lead evidence about it? If it appears that the parties did

not know that the matter was in issue at the trial and one of


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them has had no opportunity to lead evidence in respect of it,

that undoubtedly would be a different matter. To allow one party

to rely upon a matter in respect of which the other party did not

lead evidence and has had no opportunity to lead evidence, would

introduce considerations of prejudice, and in doing justice to

another.”

23. As enumerated in Section 204(2) of Cr.P.C. that no summons

or warrants shall be issued against the accused under Sub-section (1)

until a list of prosecution of witness has been filed.

24. In clause (3), it is enumerated that in a proceeding instituted

upon a complaint in writing every summons or warrants issued in Sub

section (1) shall be accompanied by a copy of such complaint.

25. In the instant case, learned MM has passed an order on

summoning, further summons are to be issued to the accused. It is

mandatory that along with the summons, the copy of the complaint of

relevant documents and the list of witnesses is required.

26. The petitioner has challenged the order of summoning passed

by the learned trial court. The summons are issued to the accused, if the

procedure enumerated under Section 204 of Cr.P.C. is not complied

with, then it is a defect in issuing the summons against the accused

because accused must know what is the complaint and evidence against

him.

27. In the instant case, the learned MM has examined complainant

and also examined one of the witness namely Raj Singh, therefore, it in

the very much knowledge of the petitioner/accused that what is the

complaint and evidence against him.

28. View taken in a case of Ghulam Mohd. Vani reported in MANU/

JK/004/1971 (citation to be checked) that non compliance of Section

204(1A) is not an illegality which renders subsequent proceedings null

and void but is a curable irregularity.

29. It is further observed that under Section 204(1A), it is statutory

proceedings is made in a public interest for the protection and benefit of

the accused and has to be complied with normally; however, it is not

mandatory in the sense that even if no prejudice is caused to the accused,

it will vitiate the trail.

30. The single Judge of Calcutta High Court has also observed in

Sunil Akhya Chaudhary V. H.M. Zadwet reported in MANU/WB/

00050/1968 (Citation and parties name to be checked) as held over the

intention of Legislature in indicating Section 204(1A) is quite clear. It is

that before issuing of summons or warrants against the accused persons,

the list of witnesses should be filed before that point of Charge and need

not be when petition/complaint is filed.

31. I am of the opinion that even if filing of the list of witnesses

is contemplated by sub-Section (2) of Section 204 and is considered to

be mandatory, the provisions contained in Section 465 of Code have to

be taken into consideration before declaring the issue of process as

illegal. This Section 465 of the new Code is equivalent to Section 537 of

the old code and it provides that no finding, sentence or order passed by

a court of competent jurisdiction shall be reversed or altered by a Court

of appeal or Revision on any error or omission or irregularity in the

complaint, summons, warrants, proclamation, order, judgment or every

proceedings before or during the trial unless in the opinion of appellant

or the revision court if failure of justice is in fact opened occasioned

thereby.

32. The issue which is raised by the learned counsel for the petitioner

cannot be considered even an error in passing the summoning order.

Even in a case where an error in issuing the process is there, even on

that basis the complaint cannot be rejected and cannot be set aside the

summoning order passed by the learned MM.

33. Therefore, I am not inclined to interfere in the order, as no

infirmity found in the impugned order. It will not result in failure of

justice and no prejudice has been caused to the petitioner/accused.

34. Criminal M.C. 2258/2011 is accordingly dismissed.

35. No order as to costs.


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607 608Shri Durga Dass Banka v. Shri Ajit Singh (Kailash Gambhir, J.)


RSA

SHRI DURGA DASS BANKA ....APPELLANT

VERSUS

SHRI AJIT SINGH & ORS. ....RESPONDENTS

(KAILASH GAMBHIR, J.)

RSA NO. : 149/2011 DATE OF DECISION: 01.11.2011

Code of Civil Procedure, 1908—Section 100—Second

appeal—Suit for mandatory and prermanent injunction

filed by Appellant praying for decree directing

Respondent no.1 to remove unauthorized construction

in the shop and to further restrain him from carrying

out any further construction therein—Suit filed inter-

alia on the ground that father of the Respondent no.1

had given an undertaking to remove unauthorized

construction before the Hon’ble Division Bench by an

earlier order dated 22.08.1975—It was alleged that

appellant come into possession after the death of his

father and despite an undertaking given by his father,

had raised unauthorized construction on the roof of

the shop—Appellant though had filed his affidavit in

evidence and had also been partly examined but he

could not appear further because of his illness, being

aged—Fresh affidavit filed by his son as attorney—

suit dismissed by Trial Court observing that attorney

had not deposed anywhere that he had personal

knowledge about the facts of the case—First Appellate

Court also dismissed the appeal—Held, as a special

power of attorney son of Appellant was authorized to

depose in place of his father—Neither his evidence

could be rejected nor an adverse inference drawn on

the ground that plaintiff himself had not appeared as

his own witness—The question to be considered only

was whether attorney holder son of plaintiff had

deposed something which was only in the personal

knowledge of the plaintiff or some act to which only

plaintiff was privy to—The factum of the undertaking

being given to the Division Bench could not have

been something exclusively in the personal knowledge

of Appellant alone—The Copy of order of Hon'ble

Division Bench proved on record by son of Appellant

as his attorney.

Hence, any act which is not a private act or which is not

something the principal alone can have personal knowledge

of can be deposed by the attorney holder and taken in

evidence while deciding the issues. There is no bar hence

under the Code or otherwise where the attorney holder is

deposing regarding a fact which is proved on record. The

learned trial court was required to consider the documentary

evidence instead of giving any weightage to the oral evidence

led by the son of the appellant. The copy of the said order

was placed and proved on record by the son of the

appellant. Perusal of the said order would clearly show that

a clear undertaking was given by the father of the defendant

that he would not raise any unauthorized construction and

that was the only relevant factor of consideration.

(Para 9)

Important Issue Involved: A fact which cannot be said

to be in the exclusive knowledge of the principal can be

deposed by the attorney holder and taken in evidence while

deciding issues.

[La Ga]

APPEARANCES:

FOR THE APPELLANT : Mr. Ashok Chhabra, Advocate.

FOR THE RESPONDENTS : Mr. V.S. Singh for respondent no.1

Ms. Mini Pushkarna, Advocate for


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holder. The contention of the counsel is that the appellant is the son of

the original plaintiff but before the learned trial court, the father of the

appellant had throughout been appearing and even he had filed his affidavit

in evidence and also entered the witness box for the cross-examination,

but because of the old age and also because he had suffered a paralytic

stroke he could not appear in the matter further. Counsel thus states that

in such extenuating circumstances the appellant being the son had filed

his power of attorney before the learned trial court and had filed affidavit

by way of his evidence. Counsel further submits that the respondent no.1

remained ex-parte throughout before the learned trial court but he had

appeared before the first appellate court and now has also appeared

before this court. Counsel also submits that the appellant had primarily

based his case on the undertaking given by the father of the respondent

before the Division Bench of this Court in Crl. Original No.107/1973

wherein the father of the respondent no.1 had undertaken not to raise any

construction over the roof of the shop bearing no. 2562, Gali No. 6,

Beadon Pura, Ajmal Khan Road, Karol Bagh, New Delhi and to demolish

the unauthorized construction already raised by him over the roof of the

said shop. Counsel also submits that the respondent MCD had appeared

before the learned trial court and they had not disputed the said position

of unauthorized construction being raised by the respondent no.1 over

the roof of the shop in utter violation of the said undertaking. Counsel

thus urges that the learned trial court as well as the first appellate court

without even bothering to look at the said documentary evidence, which

was an undertaking given by the father of the respondent no.1, had

dismissed the suit of the appellant by taking a hyper-technical view that

the appellant being the power of attorney, having no personal knowledge

of the facts of the case could not have deposed the same in place of the

plaintiff. In support of his arguments, counsel has placed reliance on the

judgment of this court in the case of Om Prakash Vs. Inder Kaur,

156(2009) DLT 292.

3. Opposing the present appeal, learned counsel for the respondent

no.1 submits that no fault can be found in both the orders passed by the

courts below and the present appeal deserves outright dismissal. Counsel

submits that the appellant who appeared in the witness box in his capacity

as attorney holder had no knowledge of the facts of the case and therefore

he was not a competent person to depose on behalf of the original

plaintiff. Counsel has invited attention of this court to page 9 of the

the Respondent No. 2. Mr. Manish

Srivastava for Respondent no.3.

CASES REFERRED TO:

1. Capt.Praveen Davar(Retd) & Anr. vs. Harvansh Kumari

& Ors. 2010(119)DRJ560.

2. Om Prakash vs. Inder Kaur, 156(2009) DLT 292.

3. Om Prakash vs. Inder Kaur 2009 107 DRJ 263.

4. Mr.Vinay Jude Dias vs. Ms.Renajeet Kaur AIR 2009 Delhi

70.

5. Satnam Channan vs. Darshan Singh 2006(2) RCR (Civil)

615 P and H].

6. Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd.

& Ors. 2005 1 AD (SC) 168.

7. Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank

Ltd. and Ors. : AIR 2005 SC 439.

8. Smt. Ramkubai (since deceased) by Lrs and Ors. vs.

Hajarimal Dhokalchand Chandak and Ors. : AIR 1999

SC 3089.


KAILASH GAMBHIR, J.

1. By this Regular Second Appeal filed under Section 100 of the

Code of Civil Procedure, 1908 the appellant seeks to challenge the order

dated 20.5.2009 passed by the learned trial court and the order dated

8.2.2011 passed by the learned appellate court, whereby the first appeal

filed by the appellant against the order dated 20.5.2009 was dismissed.

2. Mr. Ashok Chhabra, learned counsel for the appellant submits

that both the learned courts below have given illegal and perverse findings

by misconstruing the judgment of the Apex Court in the case of Janki

Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors. 2005 1

AD (SC) 168 by taking a view that since the appellant being the son of

the original plaintiff does not have personal knowledge of the facts of the

case and therefore he could not have claimed to be fully conversant with

the facts and depose in place of his father in his capacity as attorney


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impugned judgment dated 20.5.2009 wherein the learned trial court has

observed that the plaintiff in his evidence has clearly contradicted the

case as set up by the plaintiff in the plaint. Counsel thus states that both

the courts below rightly placed reliance on the judgment of the Apex

Court in Janki Devi’s case (Supra) by taking a view that the appellant

having no personal knowledge of the facts of the case was not competent

to depose on behalf of the plaintiff. Counsel for the respondent MCD has

not disputed the fact that the unauthorized construction was raised by the

respondent no.1 over the roof of the shop in question in contravention

of the said undertaking.

4. I have heard learned counsel for the parties at considerable

length and given my thoughtful consideration to the arguments advanced

by them.

5. A suit for mandatory and permanent injunction was filed by the

appellant against the respondent inter alia on the grounds that he is a

owner of the property bearing No.2562, Gali No.6, Beadon Pura, Ajmal

Khan Road, Karol Bagh, New Delhi and the respondent no.1 is in

occupation of the part of the property. It is further pleaded that in a

contempt petition filed by the appellant, father of the respondent no.1

Amrik Singh had given an undertaking to remove three walls, wooden

planks and tarpoline, whatever unauthorized construction as existing on

the roof of the shop bearing no. 2562, Gali No.6, Beadon Pura, Ajmal

Khan Road, Karol Bagh, Delhi with further undertaking not to put any

construction of any sort again on the aforesaid roof or use the same in

any other manner hereafter. It is also pleaded that in view of the said

undertaking given by the father of the respondent no.1 the Hon’ble

Division Bench vide order dated 22.8.1975 gave the directions to Mr.

Amrik Singh to remove the walls, etc mentioned by him in the statement.

The said matter was finally disposed of by the Division Bench of this

Court vide order dated 8.9.1975. It is also the case of the appellant that

the respondent no.1 on the demise of his father Shri Amrik Singh came

into possession of the said shop and despite being aware of the said

undertaking given by his father, carried out the construction again on the

roof of the said shop. It is further the case of the appellant that a legal

notice dated 15.2.2000 was served upon the respondent no.1 but despite

service of the notice respondent no.1 failed to remove the said unauthorized

construction. Based on these facts, the appellant prayed for a decree of

mandatory injunction to direct the respondent no.1 to remove unauthorized

construction as shown by him in the plan attached with the plaint and

restrain the respondent no.1 from carrying out any further construction

in the shop in question. The said suit filed by the appellant was not

contested by the respondent no.1 and it is only the respondent MCD who

had filed the written statement and contested the said suit. The MCD in

their written statement did not dispute the fact of raising of unauthorized

construction by the respondent no.1. Based on the pleadings of the

parties, the learned trial court framed the issues and thereafter the appellant

and the MCD led their respective evidence. In the evidence the appellant

had filed his own affidavit and after filing of his affidavit he in fact had

appeared for his cross-examination and part cross-examination was

conducted by the MCD as would be manifest from the order dated

22.9.2004 of the learned trial court. Thereafter, the matter was adjourned

for 7.10.2004 for further cross-examination of the appellant but on

7.10.2004, the appellant did not appear because of his illness and a

submission was made by his counsel on his behalf that in his place his

son will appear as an attorney to depose on his behalf. Thereafter a fresh

affidavit was filed by Mr. Vipin Banka, son of the appellant and his

evidence remained unrebutted. The said suit filed by the appellant was

dismissed by the learned trial court and the prime reason given by the

learned trial court for the dismissal of the said suit was that nowhere the

said attorney deposed that he has got personal knowledge about the facts

of the said case. After placing reliance on the judgment of the Apex

Court in Janki Devi’s case (Supra), the learned trial court came to the

conclusion that the son of the appellant having no personal knowledge

about the facts of the present case was not competent to depose on

behalf of his father, the original plaintiff and therefore the plaintiff/appellant

had failed to prove the issues , onus of which was upon him. Against

the said order of the learned trial court the appellant preferred an appeal

and the learned appellate court also taking the same line of thought,

dismissed the appeal vide order dated 8.2.2011. Feeling aggrieved with

both the said orders, the appellant has preferred the present appeal.

6. The appeal is taken up for final hearing at the stage of admission

itself.

7. The substantial question of law which arises in the present case

is as to


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“Whether an attorney holder can be authorized to depose on

behalf of principal when the principal due to old age and serious

illness cannot depose himself”.

It is not in dispute between the parties that Mr. Vipin Banka is the son

of the appellant and the appellant is 85 years old and suffering from

serious illness. It is also not in dispute that the appellant himself had filed

the suit and in fact had appeared in the court and had also filed his own

affidavit in evidence and had entered the witness box for his cross-

examination and it is at that stage due to his serious illness he could not

appear for his further cross-examination and then son of the appellant

had appeared in the witness box and deposed on behalf of his father. In

my considered view, as a special power of attorney holder, Mr. Vipin

Banka was fully authorized to depose in place of his father. Once such

an authority has been given by the father to his son to depose on his

behalf, can it be said that despite the said authority being given the son

would not be competent to depose on behalf of his father? Not disputing

the legal position that the facts which are within the knowledge of the

plaintiff can only be deposed by the plaintiff alone and not by his attorney

holder, but the moot question which arises in the present case is where

the father because of his old age and illness gives an authority to his son

or any of his family member to depose on his behalf, whether deposition

of such an attorney holder can be ignored on the ground that the plaintiff

himself did not appear in the witness box.? The answer to this is in the

judgment of this court relied upon by the counsel for the plaintiff in Om

Prakash Vs. Inder Kaur, 156(2009) DLT 292 wherein it was held that

the evidence given by a witness cannot be rejected on the ground that

he is a father or a relative, nor any adverse inference can be drawn

against the plaintiff on the ground that he had not appeared his own

witness in the case as the plaintiff is master of his case and he can prove

his case without appearing in the witness box.

8. The case of Janki Vashdeo (Supra) on which reliance was

placed by both the courts below reaffirms the well settled law that the

power of attorney holder cannot depose for the principal in respect of

the matter which only the principal can have a personal knowledge of.

However the said legal position is not attracted to the facts of the case

at hand. The question that arises for consideration is that whether what

was deposed by the attorney holder, the son of the plaintiff appellant

herein, was something that the principal had a personal knowledge of or

was relating to some act done by the plaintiff which only he was privy

to. The answer to this question is an emphatic no. As is evident from

the facts of the case at hand, the suit was instituted to get the order of

the Hon’ble Division Bench of this Court enforced where the undertaking

was given by the father of the appellant not to raise any unauthorized

construction and to remove the existing construction which was

unauthorized in the said order. Can it be said that the order of the court

is something that the principal alone would have personal knowledge of?

The order was of the court and the attorney deposing regarding the same

is not something to be in his personal knowledge but a fact which has

been proved on record. Here it would be relevant to refer to the judgment

of this court in the case of Capt.Praveen Davar(Retd) & Anr. vs.

Harvansh Kumari & Ors. 2010(119)DRJ560 wherein the court while

distinguishing the judgment in the case of Janki Vashdeo Bhijwani held

as under:

“16. An attempt was made by Mr. Singla, the learned senior

counsel for the appellants to contend that none of the plaintiffs

having entered into the witness box to assert their title, the

evidence of PW-1 Shri Bihari Lal Walia, the Attorney of the

respondents, could be of no assistance to the respondents. Relying

upon the judgment of the Hon’ble Supreme Court in Janki

Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.

: AIR 2005 SC 439, the learned senior counsel for the appellants

contended that the word “acts”, employed in Order 3 Rules 1 &

2 CPC, was confined to acts done by the power of attorney

holder in exercise of powers granted by the instrument and was

not inclusive of deposing in place and instead of the principal in

respect of the matters in which the acts were done by the

principal and not by him, and in which only the principal could

have a personal knowledge. Apart from the fact that this point

was not urged before the learned trial court and has been taken

up for the first time in this appeal, there is, even otherwise, in

my view, no merit in the same. The provisions of Order 3 Rules

1 and 2 CPC, as is clear from a reading thereof, contain no

impediment to the Attorney deposing in place of and instead of

the landlord. In Smt. Ramkubai (since deceased) by Lrs and

Ors. v. Hajarimal Dhokalchand Chandak and Ors. : AIR


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1999 SC 3089, the Supreme Court while dealing with a case

where the landlady did not appear in the witness box herself, but

instead produced her son, who was also her G.P.A. holder, held

that it was not important or essential for the landlord/landlady to

enter the witness box to support the case. [See also: Om Prakash

v. Inder Kaur 2009 107 DRJ 263 and Satnam Channan v.

Darshan Singh 2006(2) RCR (Civil) 615 P and H].

17. The judgment in Janki Vashdeo Bhojwani’s case (supra)

relied upon by the learned senior counsel for the appellants also

does not come to the aid of the appellants and is clearly

distinguishable. It has been held in the said case that if the power

of attorney renders some acts in pursuance of the power of

attorney, he may depose for the principal in respect of such

acts, but he cannot depose for the principal for the acts done by

the principal and not by him. Further, it has been held that he

cannot depose for the principal in respect of the matters, in

which only the principal can have a personal knowledge and in

respect of which the principal is entitled to be cross-examined.

It nowhere states that even though the facts deposed are

not facts within the personal knowledge of the principal

alone, the power of attorney holder cannot depose on behalf

of the principal.

(emphasis supplied)”

Hence,in my considered view the learned courts below have misinterpreted

the import of the judgment of the Apex Court and applied it to the facts

of the case at hand. It would also be pertinent to mention here the

judgment of this court in the case of Mr.Vinay Jude Dias vs.

Ms.Renajeet Kaur AIR 2009 Delhi 70 wherein the court while dealing

with the deposition of the attorney holder with regard to the fact that

whether the parties before the court were married or not held as under:

“Facts which are within the special knowledge of principal and

are not in the knowledge of attorney can only be deposed by the

principal. Whether the parties were married on a particular day,

is not a private act of the parties. Marriage is normally a public

act in this country and evidence can be given by anyone who has

knowledge of the fact. Whether the parties are living separate or

not is also known to other people associated with the parties and

is not something secret. Similarly, for how long parties were

living separate can be deposed in the Court by any person who

is aware of the facts. If an attorney aware of these facts and can

answer the questions of the Court, the attorney cannot be told

that he is not a competent witness or his statement would not

be recorded. Similarly an attorney, on the basis of instructions/

directions given to him, can answer the queries, if there was any

possibility of parties patching up and living together or the marriage

has broken down irretrievably. An attorney has to be allowed to

appear in the witness box and make statement. The Court may

reject that part of his statement which is based on hearsay or

which he has no personal knowledge. But he cannot be prevented

from appearing in the witness box and deposing and answering

the queries. Same is the import of judgment of Supreme Court

in Janaki Vasudeo Bhojwani (supra) wherein Supreme Court

had not debarred an attorney from appearing in the witness box

but the Supreme Court has stated the facts which are only in the

knowledge of the principal, about those facts attorney cannot

testify in the Court.”

9. Hence, any act which is not a private act or which is not

something the principal alone can have personal knowledge of can be

deposed by the attorney holder and taken in evidence while deciding the

issues. There is no bar hence under the Code or otherwise where the

attorney holder is deposing regarding a fact which is proved on record.

The learned trial court was required to consider the documentary evidence

instead of giving any weightage to the oral evidence led by the son of

the appellant. The copy of the said order was placed and proved on

record by the son of the appellant. Perusal of the said order would clearly

show that a clear undertaking was given by the father of the defendant

that he would not raise any unauthorized construction and that was the

only relevant factor of consideration.

10. Hence, in the light of the above dismissed, the present appeal

is allowed.


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617 618 New Okhla Indus. Dev. Auth. v. KM Paramjit (Indermeet Kaur, J.)


CM (M)

NEW OKHLA INDUSTRIAL ....PETITIONER

DEVELOPMENT AUTHORITY

VERSUS

KM PARAMJIT & ANR. ....RESPONDENTS


CM (M) NO. : 1278/2011, DATE OF DECISION: 01.11.2011

1279/2011, 1280/2011,

CM (M) NO. : 1281/2011

Code of Civil Procedure, 1908—Section 96—Limitation

Act, 1963—Section 5—Suit for declaration and

permanent injunction filed for restraining the appellant

from abolishing the suit property and interfering in

the peaceful possession—Trial Court vide judgment

dated 01.05.2010 decreed the suit—Appellant filed

appeal after a delay of 78 days with application under

Section 5 of limitation Act—Earlier counsel changed—

New counsel requested earlier counsel to hand over

the record—Provided only 26.06.10—Inspection report

dated 07.01.2005 found missing—Certified copy made

available on 28.07.2010 Held—The words 'sufficient

cause as appearing in Section 5 of the Limitation Act

have to be construed liberally so as to advance

substantial justice to the parties; a litigant should not

be shut out at the threshold and be deprived of the

opportunity to be heard on merits; dealy may be

condoned provided that the applicant is able to furnish

a sufficiently justifiable explanation for his delay— No

hard and fast rule can be laid down—Each case has to

be decided on its factual matrix—Unless there is lack

of bona fides or a total inaction or negligence on the

part of the litigant, the protection of Section 5 should

not be deprived to a party, mistake of a counsel may

also amount to a sufficient cause for condonation of

delay; it is always a question of fact—In the instant

case, keeping in view the explanation furnished by

the learned counsel for the petitoner the petitioner

should not be declined a hearing on merits for the

fault which at best is attributable to his counsel—

Order set-aside.

The words ‘sufficient cause’ as appearing in Section 5 of the

Limitation Act have to be construed liberally so as to

advance substantial justice to the parties; a litigant should

not be shut out at the threshold and be deprived of the

opportunity to be heard on merits; delay may be condoned

provided that the applicant is able to furnish a sufficiently

justifiable explanation for his delay. No hard and fast rule

can be laid down. Each case has to be decided on its

factual matrix. Unless there is lack of bona fides or a total

inaction or negligence on the part of the litigant, the protection

of Section 5 should not be deprived to a party; mistake of

a counsel may also amount to a sufficient cause for

condonation of delay; it is always a question of fact.

(Para 4)

Important Issue Involved: Mistake of counsel is also a

sufficient cause for condonation of delay under section 5 of

Limitation Act.

[Vi Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. H.L. Raina, Advocate.

FOR THE PETITIONER : Mr. I.V. Raghav and Mr. S.B. Raghav

Advocates for R-1.

RESULT: Appeal allowed


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619 620 New Okhla Indus. Dev. Auth. v. KM Paramjit (Indermeet Kaur, J.)


1. The order impugned before this court is the order dated 11.03.2011

vide which the application filed by the appellant under Section 5 of the

Limitation Act seeking condonation of delay of 78 days in filing the

appeal had been dismissed.

2. Record shows that a suit for permanent injunction and declaration

had been filed by the plaintiff against the two defendants; the prayer in

the suit was that the defendants i.e the New Okhla Industrial Development

Authority as also the DDA be restrained from abolishing the suit property

and interfering in the peaceful possession of the property. On the pleadings

of the parties issues were framed as the main bone of contention was

as to whether the property falls in Noida or in Delhi. The Trial Court vide

judgment dated 01.05.2010 had decreed the suit in favour of the plaintiff

holding that the suit property falls within Illaqa Shahdara, Delhi. Appeal

against the aforenoted judgment was filed by the petitioner i.e. the New

Okhla Industrial Development Authority after a delay of 78 days. In the

application under Section 5 of the Limitation Act the delay has been

explained in para Nos. 2 and 3.

3. It is not in dispute and as it is borne out from the record that

the certified copy of the judgment and decree dated 01.05.2010 had been

applied for on 07.05.2010 which was obtained on 17.05.2010; appeal

was to be filed till 17.06.2010; it was filed belatedly for the reason that

the earlier counsel who was dealing with the matter had been changed;

new counsel had requested the earlier counsel for handing over the

complete case file which was given to the new counsel only on 26.06.2010;

the inspection report dated 07.01.2005 was found missing which was to

be obtained before the appeal could be filed; certified copy of these

papers were made available only on 28.07.2010; this was the explanation

furnished by the petitioner for the delay in filing the appeal.

4. The words ‘sufficient cause’ as appearing in Section 5 of the

Limitation Act have to be construed liberally so as to advance substantial

justice to the parties; a litigant should not be shut out at the threshold and

be deprived of the opportunity to be heard on merits; delay may be

condoned provided that the applicant is able to furnish a sufficiently

justifiable explanation for his delay. No hard and fast rule can be laid

down. Each case has to be decided on its factual matrix. Unless there

is lack of bona fides or a total inaction or negligence on the part of the

litigant, the protection of Section 5 should not be deprived to a party;

mistake of a counsel may also amount to a sufficient cause for condonation

of delay; it is always a question of fact.

5. In the instant case, keeping in view the explanation furnished by

the learned counsel for the petitioner in the application which was duly

supported by the affidavit of the Tehsildar of the petitioner who had

stated that this application had been drafted on the basis of the relevant

record, the justification furnished by the petitioner for not filing the

appeal within time has been explained. The petitioner should not be

declined a hearing on merits for the fault which at best is attributable to

his counsel. The impugned order is accordingly set aside. Delay in filing

the appeal is condoned.

This order is passed subject to payment of Rs. 5,000/- as costs.

The parties to appear before the First Appellate Court on 15.11.2011 and

the Trial Court shall proceed to dispose of the appeal on its merits.


W.P. (C)

HEMANT SHARMA & ORS. ....PETITIONERS

VERSUS

UNION OF INDIA AND ORS. ....RESPONDENTS

(VIPIN SANGHI, J.)


Constitution of India, 1950—Article 19 & 226—Petition

seeking mandamus to direct resondent No. 1 to take

appropriate steps so that respondent No. 2 i.e. All

India Chess Federation does not ban/threaten to ban

chess players, associating themselves with other


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621 622 Hemant Sharma & Ors. v. Union of India and Ors. (Vipin Sanghi, J.)

chess associations—Petitioners were chess players

registered with respondent No. 2—Petitioners being

amateurs liked to play chess whenever an opportunity

presented itself even in those tournaments not

organised by respondent no. 2—Respondent No. 2

prohibited chess players registered with it from playing

in any tournament/competition which did not have the

approval of respondent No. 2—This is highly

monopolistic and anti competitive and exploiting its

dominant position to impose such unreasonable

restriction on the rights of players—Respondent

contended that there was statutory obligation on the

part of respondent No. 1 to issue directions as sought

for—Held—The definition of the expression ‘enterprise’

as used in the Competition Act read with definition of

“service” thereof, clearly shows that the respondent

no. 2 is an enterprise which is covered by the said

provisions—The allegation against respondent no. 2

is that respondent no. 2, by virtue of its agreement

with the petitioners, was seeking to control the

provision of services which was causing adverse

effect on competition within India, in as much as, the

chess players registered with respondent no. 2 were

not free to form another association or to organize

tournaments and participate therein, without facing

the consequence of losing their registration with

respondent no. 2 which is the nationally recognized

sports federation for the sports of chess—The power

of this Court under Article 226 of the Constitution of

India extends to the issuance of appropriate directions,

orders or writs for enforcement of any of the rights

conferred by Part III of the Constitution or for any

other purpose—Since in the present case the petitoner

has brought to this Court's notice the aforesaid state

of affairs in relation to respondent no. 2 the said

aspects need thorough investigation under the

provisions of the Competition Act by the Competition

Commission—There could be breach of the petitioners

fundamental right to freedom, resulting from the

policies and practices of respondent No. 2, as

guranteed under Article 19(1)(c) and 19(1)(g) of the

Constitution of India—Directions issued to Competition

Commission to enquire into the alleged contravention

of the Provisions of Section of 3 and Section 4 by

respondent no. 2 by its aforesaid constitutional

provisions and conduct under Section 26 of the

Competition Commission Act, 2002.


Competition Act read with the definition of “service” thereof,

in my view, clearly shows that the respondent no.2 is an

enterprise which is covered by the said provisions. The

allegation against respondent no.2 is that respondent no.2,

by virtue of its agreement with the petitioners, is seeking to

control the provision of services which is causing adverse

effect on competition within India, in asmuch, as, the chess

players registered with respondent no.2 are not free to form

another association or to organize tournaments and

participate therein, without facing the consequence of losing

their registration with respondent no.2 which is the nationally

recognized sports federation for the sports of chess. The

allegation also is that respondent no.2 is abusing its dominant

position as the NSF. (Para 31)

The power of this Court under Article 226 of the Constitution

of India extends to the issuance of appropriate directions,

orders or writs for enforcement of any of the rights conferred

by Part III of the Constitution or for any other purpose. Since

in the present case the petitioner has brought to this Court’s

notice the aforesaid state of affairs in relation to respondent

no.2, this Court is of the opinion that the said aspects need

thorough investigation under the provisions of the Competition

Act by the Competition Commission. There could be breach

of the petitioners fundamental rights to freedom, resulting

from the policies and practices of respondent No.2, as

guaranteed under Article 19(1)(c) and 19(1)(g) of the

Constitution of India. (Para 33)


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Important Issue Involved: All India Chess Federation action

to ban/threaten to ban chess players, associating themselves

with other chess competitions is breach of fundamental

right of the players guaranteed under Article 19 (1)(c) and

19(1)(g).

[Vi Ba]

APPEARANCES:

FOR THE PETITIONERS : Ms. Rekha Palli, Advocate.

FOR THE RESPONDENTS : Mr. Neeraj Chaudhari, CGSC with

Mr. Khalid Arshad, Advocate for UOI

Ms. Manmeet Arora with Ms. Fareha

Ahmed Khan, Advocates for

respondent no. 2

CASES REFERRED TO:

1. T.C.Thangaraj; P.Suganthi & Anr vs. V. Engammal &

Ors., 2011(8) Scale 120.

2. Competition Commission vs. Steel Authority of India

Limited and Another, (2010) 10 SCC 744.

3. State of West Bengal and Others vs. Committee for

Protection of Democratic Rights, West Bengal and Others,

AIR 2010 SC 1476.

4. Tribhuban Parkash vs. Union of India, AIR 1970 SC

540.

RESULT: Direction issued to Competition Commission to inquire.

VIPIN SANGHI, J. (Oral)

1. By this petition, the petitioner seeks the issuance of a writ of

mandamus to direct respondent no.1 i.e. UOI to the Secretary, Ministry

of Youth Affairs & Sports, to take appropriate steps so that respondent

no.2 i.e. All India Chess Federation does not ban/threaten to ban chess

players, associating themselves with other chess associations. Respondent

no.2 is the National Federation for the sport of chess, recognized by

respondent no.1. Respondent no.2 also is the body recognized by the

concerned international federation i.e. Federation Internationale Des Echess

(FIDE).

2. The petitioners claim to be chess players. In the past, they have

registered themselves with respondent no.2 on an annual basis. They

have been participating in chess tournaments organized by respondent

no.2, and those which respondent no.2 has authorized or approved. The

case of the petitioners is that the petitioners being amateurs, like to play

chess whenever an opportunity presents itself, even in those tournaments

not organized by respondent no.2 or which may not have the blessings

of respondent no.2.

3. The submission of the petitioner is that respondent no.1 has

issued the revised guidelines for assistance to National Sports Federation

(NSF). Under these guidelines, it is provided that National Sports

Federations shall be fully responsible and accountable for the overall

management, direction, control, regulation, promotion, development and

sponsorship of the discipline for which they are recognized by the

concerned International Federation. They are expected to discharge their

responsibilities in consonance with the principles laid down in the OIympic

Charter, or in the charter of the Indian Olympic Association, or the

relevant International Federation as the case may be. These guidelines

further provide that the NSFs should maintain certain basic standards,

norms and procedures with regard to their internal functioning, which

conform to the high principles and objectives laid down by the concerned

international federation, and which are also in complete consonance with

the principles laid down in the Olympic Charter or in the constitution of

the Indian Olympic Association. The sports federations seeking recognition

as NSFs are required to apply as per the guidelines contained in Annexure

P-II to the said guidelines contained in Memorandum No.F.6-6/94-SP-

III. The considerations which the Ministry of Youth Affairs & Sports

shall take into account and be guided by, inter alia, are that the sports

federation is recognized by the international federation and the Asian

federation, the role played and contribution made by the association in

promoting and developing sports in India, and the role played by the

association in protection and promotion of players interest and welfare.

4. Ms. Palli, learned counsel for the petitioner points out that the

FIDE has laid down the moral principles of FIDE which are applicable

to FIDE for non-FIDE chess competitions. The second principle laid


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down is that FIDE reaffirms its commitment to the right to play chess

and opposes all actions that would hinder that right. Ms. Palli further

submits that under the guidelines issued by the Ministry of Youth Affairs

& Sports, it is the obligation of respondent no.2 to protect the right of

the players to play chess and to oppose all organized actions which

would hinder that right of the petitioners to play chess. Ms. Palli further

submits, by reference to the aforesaid guidelines that the NSFs are primarily

responsible for judicious selection of sports persons for participation in

major international events based on merit and with the object of enhancing

national prestige and bringing glory to the country. The NSFs are expected

to introduce seeding and ranking systems which would provide an

automatic and transparent system of selection. The NSFs are also required

to introduce machinery for the redressal of players. grievances. Such

federations are also expected to evolve a system of extensive local

competitions.

5. The procedure for suspension/withdrawal of recommendation is

contained in Annexure III of the said guidelines. One of the reasons for

which the recommendation may be withdrawn by respondent no.1, in

respect of NSF, is that where in the judgment of the Government of

India, the federation is not functioning in the best interest of development

of sports for which the federation was granted recognition.

6. The grievance of the petitioners is that respondent no.2 prohibits

chess players who are registered with it from playing in any tournament,

or participating in any competition of chess, if such a tournament/

competition is organized by an association/federation or other body which

does not have the approval of respondent no.2. Ms. Palli submits that the

said conduct of respondent no.2 is highly monopolistic and anti-

competitive. Respondent no.2 being the internationally recognized sports

federation is exploiting its dominant position to impose such unreasonable

restrictions on the rights of the players, by issuing caution notices and

by claiming that such conduct of the players is detrimental to the interest

of respondent no.2. In this respect, Ms. Palli has drawn my attention to

the caution notice displayed by respondent no.2 on its website. The said

caution notice reads:-

Caution

“This is to inform all chess players/organizers/officials that any

chess event organized under the banner of “Chess Association of

India” is not recognized by the All India Chess Federation.

A reminder of our earlier circular

CAUTION

A set of disgruntled elements have announced that they have

formed a Chess Association as rivals to the All India Chess

Federation. In their mails the Chess Association of India has

announced that, with the permission of World

Chess Federation Inc ( a rival to FIDE) they will organize an

open tournament at Delhi from 23rd Dec weith a Prize fund of

Rs.15 lakhs.

All India Chess Federation cautions all chess players affiliated to

us not to participate in these tournaments or any other tournament

to be organized by Chess Association of India in future as their

events are not recognized by All India Chess Federation and as

such not authorized by AICF. This is to further remind all AICF

registered players that you have signed a declaration in the players

registration form, which we quote for your ready reference.

“I also declare that I will not participate in any unauthorized

tournament/championship.”

By playing in the tournaments conducted by Chess Association

of India, the registered players of AICF will attract disciplinary

action and hence are cautioned against playing in the tournaments

to be organized by the rival body. – Published on 09th December,

2009.”

7. Ms. Palli submits that one of the petitioner’s made an enquiry

under the Right to Information Act on respondent no.2. The first query

was whether respondent no.2 had removed or recommended the FIDE

to remove the rating of some chess players of India. The said query was

answered in the affirmative by respondent no.2. The second query was

that on what charges and under which clause of the byelaws of Federation

such recommendation was made? The answer to the said query given by

respondent no.2 reads as follows:-


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“Ans: Action was taken under the following Sections/Clause of

the bye laws of All India Chess Federation,

Section 9(n) : To take disciplinary action against its members,

the office bearers, officials and players recognized by the

federation or of any recongised Members.

Section 16(b)(XV) : To take disciplinary action against Officials

and Players concerning the charges leveled.

Section 27. Rules and Regulations:

All Rules and Regulations framed for relevant purposes or on

any matters and adopted by the Central Council and the General

Body shall have the same force as this Constitution.

Rule II of Annexure to the Bye Laws:

(C) Players shall desist from indulging in any act detrimental to

the interests of Federation.

(j) Players shall not fraudulently participate in events.

(v) Any other act which is against the aim and objects of the

Federation and detrimental to its interests.

(x) Players shall strictly abide by the Constitution, Rules

Regulations and Orders/Instructions of the Federations in force

from time to time and also abide by the instructions of the

Arbiters and AICF Office Bearers.

As per players Registration form

DECLARATION

2. I also declare that I shall abide by the rules and regulations

and the latest amendments and decisions of the State/

District Chess Association/Federation as the case may be

and cooperate with the officials in participating in State

and National Tournaments/Championships.

3. I also declare that I will not participate in any unauthorized

tournament/championship”.

8. Ms. Palli submits that the Railway Sports Promotion Board,

which is also affiliated to respondent no.2 federation issued a circular

dated 24.6.2011 to the effect that some railway chess players had

participated in chess tournaments which were not authorized by respondent

no.2. Respondent no.2 had relied upon its rule that a player who is

registered with respondent no.2 cannot play in any unauthorized tournament

and if he does so, he shall attract disciplinary action. The Railway Sports

Promotion Board has, therefore, directed that chess players who have

participated in any chess tournament which does not figure in the

tournament calendar of respondent no.2 and is not recognized by

respondent no.2 should not be allowed to participate in the tournament

organized by Railway Sports Promotion Board. Ms. Palli submits that

when the petitioner made a representation to respondent no.1 against the

aforesaid conduct of respondent no.2, respondent no.1 has merely

forwarded the petitioners grievance to respondent no.2 and obtained its

response without examining the position itself. Respondent no.2 in its

communication dated 10.05.2011 has, interalia, stated as follows:-

“The players who are registered with All India Chess Federation

are bound by the Rules and Regulations of the Federation. Those

players who want to be part of the Federation have to follow

these rules. As per the Rules of the Federation no player can

participate in unauthorized/illegal tournaments which are not

recognized or approved by the Federation. This fact is known to

all the players and the same is posted on our website.

Some former office bearers of the Federation who have been

expelled /suspended for their acts of omissions and commissions

have floated a new body called the “Chess Association of India”

claiming themselves to be a parallel body to the All India Chess

Federation. They are organizing tournaments and also naming

some of these tournaments as National Championships. This

according to us is a criminal act as the players are duped that

the certificates issued by them is valid for employment

opportunities in government and public sector undertakings.

We have prominently displayed on our website that players

participating in such tournaments are liable for disciplinary

proceedings and cautioned them against participating. Despite

this some players have participated in unauthorized tournaments

and as such they seized to become our members. The Federation

is not duty bound to offer secretarial services to these players.


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Moreover, the Federation pays a fee to each of our members to

the FIDE annually.

Our Central Council has decided to inform FIDE about the players

who are no longer our members and to withdraw their ratings.

They are free to play in tournaments not approved by us. We

cannot stop them in playing unapproved/illegal tournaments. But

they cannot continue to be our members. So it is wrong to say

that our actions are undemocratic or illegal.

We enclose the players registration form wherein the players

have to sign a declaration stating that they will not play in

unauthorized tournaments, is highlighted for your immediate

reference. We are also enclosing a copy of our notification on

our website cautioning the players against participating in

unauthorized/illegal tournaments”.

9. The aforesaid conduct or stand of respondent no.2 is not denied

by learned counsel for respondent no.2 In fact, she has drawn my

attention to the declaration that chess players make at the time of seeking

registration. The said declaration, inter alia reads as follows:-

“I also declare that I shall abide by the rules and regulations and

the latest amendments and decisions of the State/District Chess

Association/Federation as the case may be and cooperate with

the officials in participating in State and National Tournaments/

Championships.”

10. She has also drawn my attention to the annexure to the

constitution and byelaws of respondent no.2 which, inter alia provides in

clause(z) as follows:-

“No player shall participate in any tournament not authorized by

All India Chess Federation or by its affiliate members or District

Associations and units affiliated to them. The above violation

shall attract disciplinary proceedings including cash penalties apart

from debarring from participating in any tournaments in future.”

11. Learned counsel for respondent no.2 submits that there is no

challenge by the petitioner to the constitutional byelaws of respondent

no.2 in the present petition and even if such a challenge were to be

raised, this is not the right forum. She also submits that respondent no.1

does not retain any supervisory jurisdiction over respondent no.2.

Consequently, this Court cannot issue any direction to respondent No.1,

as prayed for in this petition. She further submits that respondent no.2

is not even located within the jurisdiction of this Court and, even according

to the petitioner, no relief is directed against respondent No.2 directly.

The prayer made in the petition is directed only against respondent no.1,

though it affects respondent no.2 as well.

12. The petitioner indeed has not been able to point out any statutory

obligation on the part of respondent no.1 to issue the directions as sought

for in this petition pertaining to respondent no.2 In the absence of such

authority and responsibility vested in respondent no.1, this Court is not

inclined to entertain the present writ petition and grant the relief as sought

for in this petition.

13. However, in my view, the matter does not end there. Prima

facie, it appears to me that the endeavour of respondent no.2 appears to

be to exercise its monopolistic and dominant position to stifle the growth

of any other association of chess players, by threatening the chess players

registered with it, with disciplinary action/expulsion and a virtual boycott

in case they participate in tournaments organized by such other

associations. The policy and conduct of respondent No.2 may, therefore,

call for examination by the Competition Commission constituted under

the Competition Act, 2002.

14. Learned counsel for the petitioner has relied upon the decision

of the Supreme Court in State of West Bengal and Others Vs.

Committee for Protection of Democratic Rights, West Bengal and

Others, AIR 2010 SC 1476. The issue considered by the Supreme Court

in this decision was whether the High Court, in exercise of this jurisdiction

under Article 226 of the Constitution has the power to direct the CBI to

investigate a case within its territorial jurisdiction without the concurrence

of the State Government, as is required under Section 6 of the Delhi

Special Police Establishment Act, 1946 under which the CBI has been

constituted. The Supreme Court has held that, in deserving and exceptional

cases, the Court may direct the CBI to cause an investigation to be made

in such like cases.

15. Learned counsel for respondent no.2 has sought to explain that

under the scheme of things, as it exists not only in this country, but


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internationally, only one federation is recognized at the district, state and

national level- which also obtains recognition from the international body

pertaining to the discipline of sport in question. By reference to the

guidelines, she submits that only that sports federation, which is recognized

by the concerned international sports council, is granted national

recognition by the Government of India.

16. The issue is not about the recognition of respondent no.2 as the

NSF. The issue is with regard to the right of the players of chess to form

another association and to organize tournaments in the country without

the involvement of or the blessings of respondent No.2. The issue is with

regard to the right of the players to freely participate in tournaments so

organized, without the fear of being hounded by respondent no.2 and

without the fear of the Sword of Damocles falling on their heads, if they

participate in such so-called illegal or unauthorized tournaments.

17. Respondent no.2 has been given the mandate to select the

players who would eventually be entitled to participate in international

tournaments. Respondent no.2 also flexes its muscles by instructing

FIDE to remove the ranking of the chess players who participate in

unauthorized or illegal tournaments. Therefore the dependence of all players

on respondent no. 2 for registration cannot be overemphasized.

18. I have put it to learned counsel for respondent no.2 as to why

this Court should not refer the constitutional provisions, rules and

regulations and the aforesaid conduct and practice of respondent no.2 for

investigation and inquiry by the Competition Commission constituted under

the Competition Act, 2002, as I am inclined to do so. Learned counsel

for respondent no.2 submits, by reference to the Statement of Objects

and Reasons, and the preamble of the Competition Act, that the said Act

has been enacted to deal with commercial matters only. The Statement

of Objects and Reasons of the said Act shows that the said Act has been

enacted by the Parliament as a result of the opening up of the economy,

in pursuit of globalization. The purpose is to gear up the Indian market

to face competition from within, and outside. The Preamble of the Act

provides that the Act is enacted in view of the economic development of

the country, to prevent practices having adverse effect on competition,

to promote and sustain competition in markets, to protect the interests

of consumers and to ensure freedom of trade carried out by other

participants and markets in India. She also refers to the judgment of the

Supreme Court in Competition Commission Vs. Steel Authority of

India Limited and Another, (2010) 10 SCC 744, wherein the Supreme

Court sets out the background in which the Competition Act has been

enacted and the purpose for which it has been enacted.

19. Ms. Manmeet Arora, submits that respondent no. 2 NSF is not

covered by the Competition Act. She further submits that the power to

make a reference under Section 19(1)(b) of the Competition Act is

vested with the Central Government, or the State Government or the

statutory authority. She submits that the expression “statutory authority”

is defined in Section 2(w) of the Act to mean any authority, board,

corporation, council, institute, university or any other body corporate

established by or under any Central, State or Provincial Act for the

purposes of regulating production or supply of goods or provision of any

services or markets therefor or any matter connected therewith or

incidental thereto. She submits that this Court is not a statutory authority

as it is constituted under the Constitution of India.

20. She further submits that the reference can be made by a statutory

authority under Section 21 of the Act. This Section postulates that where

the statutory authority, during the course of any proceedings before it,

is inclined to make any decision which would be contrary to the provisions

of the Competition Act, such authority may make a reference to the

Competition Commission. Upon receipt of such reference, the Competition

Commission is required to give its opinion and to send the same to the

statutory authority. She submits that this Court is in the process of

disposing of this petition and the situation contemplated by Section 21 of

the Act does not exist in the facts of this case. She submits that the

opinion of the Competition commission is not binding on this Court. In

fact, the decisions of the Competition Commission are subject to judicial

review before this Court. She also submits that this Court is not exercising

territorial jurisdiction over respondent no.2 and, therefore, this Court has

no jurisdiction to refer the case of respondent no.2 for examination by

the Competition Commission.

21. Learned counsel for the respondent submits that the decision in

State of West Bengal (supra) is of no avail to the petitioner for the

reason that the issuance of the direction by the High Court for the

conduct of investigation by the CBI was upheld in the peculiar

circumstances of that case. It was found, as a matter of fact, that the


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local police was not investigating the case which involved the death of

eleven persons while few others were missing The allegation in that case

was that the ruling party in the State was not interested in the conduct

of fair and local investigation. She submits that it is open to the petitioner

to approach the Competition Commission on its own and this Court

should not, therefore, make a reference to the Commission under Article

226 of the Constitution. She also relies on T.C.Thangaraj; P.Suganthi

& Anr Vs. V. Engammal & Ors., 2011(8) Scale 120, wherein the

Supreme Court reversed the decision of the High Court directing

investigation by the CBI in a case where the allegation was that, since

one of the accused was a police officer, the local police was not conducting

the investigation properly. The Supreme Court held that if the High Court

found that the investigation was not being completed because one of the

accused was an Inspector of Police, the High Court could have directed

the Superintendent of Police to entrust the investigation to an officer,

senior in rank to the Inspector of Police under Section 154(3) Cr.P.C and

not to the CBI. The Supreme Court also referred to Section 156(3) of

the Cr.P.C which provides a check on the performance by the police of

their duties, and where the Magistrate finds that the police have not done

their duty or not investigated satisfactorily, he can direct the Police to

carry out the investigation properly, and can monitor the same.

22. In her rejoinder, learned counsel has drawn my attention to

Section 2(h) of the Competition Act, which defines the expression

‘enterprise. to mean “a person or a department of the Government, who

or which is, or has been, engaged in any activity, relating to the

production, storage, supply, distribution, acquisition or control of articles

or goods, or the provision of services, of any kind, or in investment, or

in the business of acquiring, holding, underwriting or dealing with shares,

debentures or other securities of any other body corporate, either directly

or through one or more of its units or divisions or subsidiaries, whether

such unit or division or subsidiary is located at the same place where the

enterprise is located or at a different place or at different places, but

does not include any activity of the Government relatable to the sovereign

functions of the Government including all activities carried on by the

departments of the Central Government dealing with atomic energy,

currency, defence and space.”

23. The expression ‘activity’ has been defined to include profession

or occupation. Respondent no.2, admittedly, charges a registration fee on

an annual basis. She submits that respondent no.2 also charges fee from

players to participate in tournaments organised by it.

24. Section 2(f) defines the expression ‘consumer’ to, inter alia,

mean, “any person who (i)——————————————————————

————————— (ii) hires or avails of any services for a consideration

which has been paid or promised or partly paid and partly promised, or

under any system of deferred payment and includes any beneficiary of

such services other than the person who hires or avails of the services

for consideration paid or promised, or partly paid and partly promised,

or under any system of deferred payment, when such services are availed

of with the approval of the first-mentioned person whether such hiring

or availing of services is for any commercial purpose or for personal

use;”

25. It is argued that when the departments of the government,

engaged in, inter alia, provision of services of any kind are covered by

the expression ‘enterprise’, certainly respondent No.2 cannot escape from

the scope of that expression. It is argued that respondent No.2 itself

claims to be rendering service to the players registered with it for a

charge, and the petitioners are the consumers of the said services.

Respondent No. 2, admittedly, charges a registration fee on an annual

basis. She submits that respondent No. 2 also charges fee from players

to participate in tournaments organized by it. It is, therefore, argued that

respondent No.2 is covered under the Competition Commission Act,

2002. She further submits that the caution that the High Court needs to

exercise, in exercise of its jurisdiction under Article 226, while referring

a case for investigation to the Competition Commission is not comparable

to the situation where the High Court seeks to substitute the CBI as the

investigating agency. This is because the said direction of the Court

seeks to substitute the normal investigating agency i.e the local police

concerned with the CBI, and that too without the concurrence of the

State Government. She submits that under Section 19 of the Competition

Act, the power of the Commission to cause an investigation can be

exercised suo moto or upon information being received from any person,

consumer or their association or trade association. When any person or

consumer can seek investigation of a case by the CCI, certainly this


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Court, in appropriate cases, can ask the CCI to look into a case.

26. Having heard learned counsel for the parties, prima facie, it

appears to me that respondent no.2 is rendering services to the petitioners

and to all others who are registered with it as chess players. The

responsibilities of respondent no.2 as an NSF are set out in the guidelines

issued by respondent no.1, some of which have already been referred to

earlier. Admittedly, respondent no.2 organises chess tournaments and

provides technical support and expertise for conduct of such chess

tournaments. That, in my prima facie view, would constitute service

rendered by respondent no.2 to the players who are registered with it.

Such service is being rendered for a consideration received from the

players, as is evident from the registration form, a copy whereof has

been filed on record by respondent no.2. It is also borne by respondent

No.1 for the benefit of all chess players who provides grants to respondent

No.2.

27. Respondent no.2, prima facie, would also fall within the

expression ‘enterprise. as used in the Act which is very widely worded

to even include a person or a department of the government rendering

services “of any kind” and excludes only those activities of the government

which are relatable to sovereign functions of the government and all

activities carried out by the departments of the Central Government

dealing with atomic energy, currency, defence and space. Respondent

no.2 does not fall in any of the said exceptions.

28. As aforesaid, it is engaged in rendering services of a kind. The

reference to the Statement of Objects and Reasons only shows that the

Competition Act came to be enacted in the wake of globalization and

opening up of India’s economy. However, the said Act was also enacted

to replace the obsolete Monopolies and Restrictive Trade Practices Act,

1969 which empowered the MRTP commission to enquire into

monopolistic and unfair trade practices. The reliance on the Statements

and Objects and Reasons of the Competition Act by respondent no.2 is

also of no avail in view of the express provisions contained in the said

Act which do not show that the provisions of the said Act are applicable

only to commercial establishments who provide goods or render services.

In Tribhuban Parkash v. Union of India, AIR 1970 SC 540, the

Supreme Court held that only when there is a doubt as to the meaning

of a provision, recourse may be made had to the preamble to ascertain

the reasons for the enactment and hence the intention of the Parliament.

If the language of the enactment is capable of more than one meaning

then that one is to be preferred which comes nearest to the purpose and

scope of the preamble. In other words, Preamble may assist in ascertaining

the meaning but it does not affect clear words in a statute. The courts

are thus not expected to start with the preamble for construing a statutory

provision nor does the mere fact that a clear and unambiguous statutory

provision goes beyond the preamble give rise by itself to a doubt on its

meaning. Since the meaning of the expression ‘enterprise., ‘service’ and

‘consumer’ as used in the Competition Act is very clear, I am not

inclined to accept the submission of respondent no.2 founded upon a

reading of the Statement of Object and Reasons and Preamble to the

Competition Act, 2002.

29. The Preamble of the Competition Act, when closely read, shows

that the said Act has been enacted to provide, keeping in view the

economic development of the country, for the establishment of a

Commission to prevent practices having adverse effect on

competition, to promote and sustain competition in markets, to protect

the interests of consumers and to ensure freedom of trade carried on by

other participants in markets, in India, and for matters connected therewith

or incidental thereto.”(emphasis supplied).

30. Therefore, one of the purposes of the said Act is to prevent

practices having adverse effect on competition. The said practice need

not necessarily be related to trade or commerce.

31. The definition of the expression ‘enterprise’ as used in the

Competition Act read with the definition of “service” thereof, in my

view, clearly shows that the respondent no.2 is an enterprise which is

covered by the said provisions. The allegation against respondent no.2 is

that respondent no.2, by virtue of its agreement with the petitioners, is

seeking to control the provision of services which is causing adverse

effect on competition within India, in asmuch, as, the chess players

registered with respondent no.2 are not free to form another association

or to organize tournaments and participate therein, without facing the

consequence of losing their registration with respondent no.2 which is

the nationally recognized sports federation for the sports of chess. The

allegation also is that respondent no.2 is abusing its dominant position as

the NSF.


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Hemant Sharma & Ors. v. Union of India and Ors. (Vipin Sanghi, J.) 637 638

32. The submission of learned counsel for respondent no.2 is that,

in terms of its mandate, respondent no.2 is regulating the sport of chess

by preventing players registered with it from participating in chess

tournaments organized with other chess associations and organizations

which are not recognized by respondent no.2. she submits this is done

to protect the interest of the players from being exploited by such other

associations/organizations. Whether or not the said activity of respondent

no.2 falls foul of the Competition Act would be an issue to be determined

by the Competition Commission, and I am not required to go into the said

issue.

33. The power of this Court under Article 226 of the Constitution

of India extends to the issuance of appropriate directions, orders or writs

for enforcement of any of the rights conferred by Part III of the

Constitution or for any other purpose. Since in the present case the

petitioner has brought to this Court’s notice the aforesaid state of affairs

in relation to respondent no.2, this Court is of the opinion that the said

aspects need thorough investigation under the provisions of the Competition

Act by the Competition Commission. There could be breach of the

petitioners fundamental rights to freedom, resulting from the policies and

practices of respondent No.2, as guaranteed under Article 19(1)(c) and

19(1)(g) of the Constitution of India.

34. The Supreme Court in State of West Bengal (supra) has

recognized the power of the High Court, in appropriate cases, to require

the CBI to cause an investigation in relation to a case falling within its

territorial jurisdiction. If the High Court can direct the investigation to be

made by the CBI in appropriate cases, whereby the provision of Section

6 of the Delhi Special Police Establishment Act, 1946 is over ridden,

certainly the High Court can direct the making of a reference to the

Competition Commission under Section 19 of the Competition Act,

particularly when the Competition Commission can cause the investigation

to be made not only suo motu, but on receipt of intimation “from any

person”. In fact, in State of West Bengal (supra), the Supreme Court

in paragraph 45 observed that being the protectors of civil liberties of the

citizens, the Supreme Court and the High Courts have not only the power

and jurisdiction, but also an obligation to protect the fundamental rights,

guaranteed by Part III in general, and under Article 21 of the Constitution

in particular, zealously and vigilantly. The judgment in the case of

T.C.Thangaraj (supra) has no application in the light of the aforesaid

discussion and the substantially different positions of the Competition

Act, 2002 and the Delhi Police Establishment Act whereunder CBI is

constituted.

35. I, therefore, direct the Competition Commission to enquire into

the alleged contravention of the provisions of Section 3 and Section 4 by

respondent no.2 by its aforesaid constitutional provisions and conduct

under Section 26 of the Competition Commission Act, 2002. The petitioner

may appear before the Commission on 28.11.2011. The petitioner shall

present before the Commission a memorandum containing its grievances

in this respect on the said date.

36. It is made clear that observations made by me in relation to the

case of respondent no.2 are only prima facie, and shall not prejudice their

case and the Commission shall enquire into the same independently.


CRL. A.

RAJU CHAKRAVARTHY ....APPELLANT

VERSUS

STATE OF NCT OF DELHI ....RESPONDENT

(S. RAVINDRA BHAT & PRATIBHA RANI, JJ.)

CRL A. NO. : 152/2005 DATE OF DECISION: 04.11.2011

CRL. M.A. NO. : 10880/2011

Juvenile Justice (Care and protection of Children)

Act, 2000—Section 15, 16—Appellant/accused was

juvenile at the time of commission of murder, but


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639 640Raju Chakravarthy v. State of NCT of Delhi (S. Ravindra Bhat, J.)

suffered imprisonment for over 10 years, which is

three times the maximum period prescribed under the

Act—Not an appropriate case to send the appellant to

Juvenile Justice Board as the same would be grave

injustice—Conviction quashed.

In this case, the facts would reveal that the accused juvenile

suffered imprisonment for over 10 years, i.e. over three

times the maximum period prescribed under the Act, for

sending a juvenile found to have committed an offence, to

a special home, (which is 3 years). The report relied on by

this Court – which has not been challenged by the State –

indicates that he was about about 14 years or less as on the

date of occurrence. As per Section 7A sub-Section (2) of

the Act of 2000 if Court finds a person to be a juvenile on

the date of commission of the offence, the juvenile has to be

forwarded to the Board for passing an appropriate orders

and sentence and the sentence, if any, passed by a Court

shall be deemed to have no effect. Unfortunately, the

Appellant has already spent nearly nine years in jail far in

excess of the maximum period of three years that too could

have been spent by him in a special home as per Section

15 (1)(g) of the Act of 2000. This is not an appropriate case,

to send the Appellant to the Juvenile Justice Board to be

dealt with in accordance with the provisions of Section 7-A

sub-Section (2) of the Act of 2000 or should we end the

proceedings here. This court is of the opinion that it would

be a grave injustice to direct the Appellant to face an inquiry

again before the Board. (Para 10)

[Gi Ka]

APPEARANCES:

FOR THE APPELLANT : Ms. Rakhi Dubey, Advocate.

FOR THE RESPONDENT :

Mr. M.N. Dudeja, App.

CASES REFERRED TO:

1. Jyoti Prakash Rai vs. State of Bihar, AIR 2008 SC 1696.

2. Rajnit Singh vs. State of Haryana 2008 (9) SCC 453).

3. Jitender Ram vs. State of Jharkhand, 2006 (9) SCC 428.

4. Pratap Singh vs. State of Jharkhand, AIR 2005 SC 2731.

5. Gurpreet Singh vs. State of Punjab, 2005 (12) SCC 615.

RUSULT: Appeal Disposed of.

S. RAVINDRA BHAT (OPEN COURT)

1. The appellant had preferred a Bail Application, Crl. M. (Bail) 278/

2009 in which he claimed inter alia that he was a juvenile on the date of

commission of the offence. The Court had, therefore, ordered an enquiry

under Section 7-A of the Juvenile Justice Act, into this aspect. After

lapse of almost two years, when the matter was taken-up, the Court

noticed that the progress of enquiry was very slow and accordingly

directed the appellant to be enlarged on bail by its order dated 28.07.2011

(in Crl. M. (Bail) 278/2009). The applicant was unable to furnish reduced

surety for the sum of Rs. 2500/- and moved Crl. M.A. 10880/2011. In

the meanwhile, pursuant to the previous directions, the Court received

the report of the enquiry by the Trial Court dated 24.09.2011.

2. The Appellant, along with a co-accused, was convicted for

committing the offence punishable under Section 302/34 IPC, by the

impugned judgment, dated 27-9-2004. We have considered the same and

heard counsel for the parties.

3. The Appellant contended that he was a juvenile, being about 14

years at the time of commission of the offence. On the basis of his

averments, and submissions made on his behalf, the Trial Court directed

investigation, to enquire into the truth of such an assertion; accordingly,

a team of the Delhi Police visited District Purab Midnapore in West

Bengal. The material gathered, in the form of CW-1, and inspector in the

Delhi Police’s statement- corroborated by a certificate from the Principal

of the local village school is to the effect that according to the

contemporaneous school records, the Appellant’s date of birth was 10-

07-1987. As far as the medical opinion is concerned, the certificate

issued by the medical authorities, in this case, reveals that as on the date


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Raju Chakravarthy v. State of NCT of Delhi (S. Ravindra Bhat, J.) 641 642

of his examination, the Appellant’s bone age indicated that he was between

25 and 40 years. Considering these materials, the Trial Court formed the

opinion – to base its report, that the Appellant was 13 years, 5 months

and 12 days on the date of the offence.

4. Learned APP did not seriously dispute the inferences drawn in

the report. He faintly argued that the ossification test, which led to the

bone age report, revealed that the Appellant was more than 25 years. It

would be relevant at this stage to consider Rule 12 of the Juvenile Justice

(Care and Protection) Rules, 2007, which reads as follows:

“12. Procedure to be followed in determination of Age.—(1)

In every case concerning a child or a juvenile in conflict with

law, the court or the Board or as the case may be the Committee

referred to in rule 19 of these rules shall determine the age of

such juvenile or child or a juvenile in conflict with law within a

period of thirty days from the date of making of the application

for that purpose. (2) The court or the Board or as the case may

be the Committee shall decide the juvenility or otherwise of the

juvenile or the child or as the case may be the juvenile in conflict

with law,prima facie on the basis of physical appearance or

documents, if available, and send him to the observation home

or in jail. (3) In every case concerning a child or juvenile in

conflict with law, the age determination inquiry shall be conducted

by the court or the Board or, as the case may be, the Committee

by seeking evidence by obtaining —

(a) (i) the matriculation or equivalent certificates, if

available; and in the absence whereof;

(ii) the date of birth certificate from the school (other

than a play school) first attended; and in the absence

whereof;

(iii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of

clause (a) above, the medical opinion will be sought from

a duly constituted Medical Board, which will declare the

age of the juvenile or child. In case exact assessment of

the age cannot be done, the Court or the Board or, as the

case may be, the Committee, for the reasons to be recorded

by them, may, if considered necessary, give benefit to the

child or juvenile by considering his/her age on lower side

within the margin of one year. and, while passing orders

in such case shall, after taking into consideration such

evidence as may be available, or the medical opinion, as

the case may be, record a finding in respect of his age

and either of the evidence specified in any of the clauses

(a)(i), (ii), (iii) or in the absence whereof, clause (b) shall

be the conclusive proof of the age as regards such child

or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with

law is found to be below 18 years on the date of offence, on the

basis of any of the conclusive proof specified in sub-rule (3), the

court or the Board or as the case may be the Committee shall

in writing pass an order stating the age and declaring the status

of juvenility or otherwise, for the purpose of the Act and these

rules and a copy of the order shall be given to such juvenile or

the person concerned.”

It is apparent from the scheme of the above rule that all specified methods

of ag-determination have to be first explored; it is only after they are

exhausted that the Board of court has to fall back on the medical opinion

given in that regard. Having regard to the structure of the rule, therefore,

the court has to first see if other primary evidence is available. In this

case, Ex. PW-CW1/A the statement of SI Laxmi Chand, who went to

Village Jikarapara, P.O. Pratapdighi, District Purba Midnapur, West Bengal,

the date of birth of the Appellant was 10-07-1987; the statement of the

Principal, of the school where the appellant was admitted has also been

produced. In view of this, the ossification test reports furnished to this

court are not of much value. Nevertheless, that record too, in this court’s

opinion, lends assurance that the Appellant was a juvenile, on the date of

the offence, viz. 22/23-12-2000; he would have been approximately over

14 years then. In view of these facts, the court finds no force in the

submissions of the prosecution; the bone age was determined, on

examination, conducted on 06-09-2011 was 25-40 years. According to

the school record – the document furnished to this court by the Trial

Court along with its report shows that the Appellant’s age on the date


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643 644Raju Chakravarthy v. State of NCT of Delhi (S. Ravindra Bhat, J.)

of the incident (22/23-12-2000) was 13 years, 5 months and 12 days.

5. At this stage, it would be necessary to note that the Act is a

complete Code, prescribing a special procedure, and an entirely different

set of standards to be adopted for juveniles (defined as those who have

not completed 18 years of age, by Section 2 (k)) “in conflict” with law

(i.e. a juvenile alleged to have committed an offence, by Section 2 (l)).

By Section 6 (1) the Juvenile Justice Board is entitled to exclusively deal

with all matters, including enquiry into allegations of the juveniles alleged

to have committed offences. Whenever a Magistrate – who is not

empowered under the Act to exercise jurisdiction – is of opinion that the

accused brought before him is a juvenile he has to refer such matter and

person to the Board.

6. In terms of Sections 14 and 15, Boards have exclusive jurisdiction

to hold enquiries into allegations about juveniles having committed offence.

Boards have various options, to prescribe sanctions, including directing

a juvenile to be sent to a special home for a period of three years. Section

15 (1), pertinently enables the Board to:-

“(a)allow the juvenile to go home after advice or admonition

following appropriate inquiry against the counseling to the parent

or the guardian and the juvenile;

(b) direct the juvenile to participate in group counseling and

similar activities:

(c) order the juvenile to perform community service:

(d) order the parent of the juvenile or the juvenile himself to pay

a fine, if he is over fourteen years of age and earns money;

(e) direct the juvenile to be released on probation of good conduct

and placed under the care of any parent, guardian or other fit

person, on such parent, guardian or other fit person executing a

bond, with or without surety, as the Board may require, for the

good behaviour and well-being of the juvenile for any period not

exceeding three years;

(f) direct the juvenile to be released on probation of good conduct

and placed under the care of any fit institution for the good

behavior and well-being of the juvenile for any period not exceeding

three years;

(g) make an order directing the juvenile to be sent to a special

home for a period of three years:

Provided that the Board may, if it is satisfied that having regard

to the nature of the offence and the circumstances of the case,

it is expedient so to do, for reasons to be recorded, reduce the

period of stay to such period as it thinks fit.”

7. If a question as to whether anyone is a juvenile arises, (by virtue

of Section 7A) before any Court, it can consider evidence, and return

findings in that regard. By reason of Section 7A (2), if the Court holds

that the person is a juvenile, it has to forward the matter to the Board

for passing appropriate orders or sentence, as the case may be. Section

18 mandates that a juvenile cannot be tried jointly with an adult.

8. Section 20 is important; which prescribes that when a criminal

case is pending before a Court in revision or appeal, the Court (wherever

the case was pending on the date of coming into force of the Act) can

proceed with the matter, but if it is satisfied that the juvenile has committed

the offence, refer the matter to the Board for appropriate orders.

9. It has been held in a series of decisions that if the incident

occurred when the accused was a juvenile, even if he takes the plea after

conviction, and in appeal, he would be entitled to the benefit of Section

20 (Jyoti Prakash Rai v. State of Bihar, AIR 2008 SC 1696; Pratap

Singh v. State of Jharkhand, AIR 2005 SC 2731; Gurpreet Singh v.

State of Punjab, 2005 (12) SCC 615; Jitender Ram v. State of

Jharkhand, 2006 (9) SCC 428; Rajnit Singh v. State of Haryana

2008 (9) SCC 453).

10. In this case, the facts would reveal that the accused juvenile

suffered imprisonment for over 10 years, i.e. over three times the maximum

period prescribed under the Act, for sending a juvenile found to have

committed an offence, to a special home, (which is 3 years). The report

relied on by this Court – which has not been challenged by the State –

indicates that he was about about 14 years or less as on the date of

occurrence. As per Section 7A sub-Section (2) of the Act of 2000 if

Court finds a person to be a juvenile on the date of commission of the

offence, the juvenile has to be forwarded to the Board for passing an


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645 646Neeta Mehra v. Sanjay Mehra (Kailash Gambhir, J.)

appropriate orders and sentence and the sentence, if any, passed by a

Court shall be deemed to have no effect. Unfortunately, the Appellant has

already spent nearly nine years in jail far in excess of the maximum

period of three years that too could have been spent by him in a special

home as per Section 15 (1)(g) of the Act of 2000. This is not an

appropriate case, to send the Appellant to the Juvenile Justice Board to

be dealt with in accordance with the provisions of Section 7-A sub-

Section (2) of the Act of 2000 or should we end the proceedings here.

This court is of the opinion that it would be a grave injustice to direct

the Appellant to face an inquiry again before the Board.

11. In similar circumstances, consistently courts have quashed

proceedings, and deemed it appropriate not to remit the matter to the

Board, as it would not sub-serve any public interest. In this case too,

such an order is the only possible direction in the ends of justice. We

therefore, direct that the report of the Trial Court, as to the Appellant’s

being a juvenile on the date of the offence has to be and is accepted; the

conviction recorded by the Trial Court is quashed. The Appellant shall be

released forthwith; the Appeal is disposed of in the above terms.


CRP

NEETA MEHRA ....PETITIONER

VERSUS

SANJAY MEHRA ....RESPONDENTS

(KAILASH GAMBHIR, J.)

CRP NO. : 156/2011 DATE OF DECISION: 08.11.2011

Code of Civil Procedure, 1908—Section 115, 151 Order

9 Rule 43 Rule 1(c)—Application to restore divorce

petition which was dismissed in default, dismissed

because of non compliance of direction to liquidate


Respondent filed application under Section 151 CPC

for restoration of divorce petition and paid part of

arrears of maintenance and undertook to pay balance

in three months—Matrimonial Court allowed application

and restored divorce petition—Order challenged

before High Court—Plea taken, Trial Court committed

jurisdictional error by invoking power under Section

151 CPC to restore divorce petition filed by respondent

when only remedy available to respondent was to file

appeal—Order dismissing application for restoration

of divorce petition was passed on merits and could

not have been recalled by Trial Court in exercise of its

inherent power—Held—Application under Order 9 Rule

4 was rejected only for want of payment of maintenance

amount and since respondent could be said to have

paid said amount with said undertaking there was no

reason left for Court to deny prayer of respondent to

seek restoration of his divorce petition—Matrimonial

disputes need to be adjudicated on its merits;

substantive rights of parties cannot be defeated by

adopting a hypertechnical approach, that too on basis

of procedural niceties—Procedural laws are handmaids

of justice and cannot come in way of advancing cause

of justice—No merit in petition which is hereby

dismissed.

It is a settled legal position that the power under Section 151

CPC is an addition to and complimentary to the powers

expressly conferred under the Code and can be exercised

by the Courts to make a suitable order to prevent the abuse

of the process of Court and can be exercised when there is

no specific provision dealing with the grant of relief as

sought. It is also well settled that nothing can limit or affect

the inherent powers of the Court to meet the ends of justice

as power exercised by the Court under Section 151 CPC is

ex debito justitiae; to do real and substantial justice for the


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administration of which alone the Court exists or to prevent

abuse of the process of the Court. The inherent powers of

the Court are with respect to the procedure followed by the

Court in deciding the cause before it and are conferred

under the Code, but certainly the Courts will not exercise

inherent powers when such power could clearly conflict with

the powers expressly or by necessary implication conferred

on the Courts by the other provisions of the Code.

(Para 5)

Important Issue Involved: The matrimonial disputes needs

to be adjudicated on its merits and the substantive rights of

the parties cannot be defeated by adopting a hypertechnical

approach; that too on the basis of procedural niceties.

[Ar Bh]

APPERANCES:

FOR THE PETITIONER : Mr. Ashok Agrwaal with Mr. Salar

M. Khan, Advocates.

FOR THE RESPONDENT : Nemo.

CASE REFERRED TO:

1. Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth

Hiralal, AIR 1962 SC 527.

RESULT: Dismissed.

KAILASH GAMBHIR, J.

1. By this revision petition filed under Section 115 read with Section

151 CPC, the petitioner seeks to challenge the order dated 30th September,

2009 whereby the learned Trial Court directed restoration of the divorce

petition filed by the respondent on the application moved by him under

Section 151 CPC.

2. Assailing the said order, learned counsel appearing for the

petitioner submits that the learned Trial Court committed jurisdictional

error by invoking the power under Section 151 CPC to restore the

divorce petition filed by the respondent when only remedy available to the

respondent was to file an appeal in terms of order 43 Rule 1 (c) read

with Section 151 CPC. The contention of the counsel for the petitioner

is that the divorce petition filed by the respondent was dismissed in

default on account of the non-appearance of the respondent and his

Advocate on 29.10.2010 and thereafter to seek restoration of the petition

the respondent had moved an application under Order 9 Rule 4 CPC,

which too was dismissed for non-prosecution by the learned Trial Court

vide order dated 16.5.2011, but the said order was illegally recalled by

the learned Trial Court on the application moved by the respondent under

Order 151 CPC. The counsel also contends that the order dated 16.5.2011

passed by the learned Trial Court in fact was an order on merits and the

same could not have been recalled by the learned Trial Court in exercise

of its inherent power under Section 151 CPC. Counsel also submits that

even the limitation period to challenge the said order dated 16.5.2011 has

expired and, therefore, without seeking remedy of filing an appeal, which

again could be filed after seeking condonation of delay in filing such an

appeal. The counsel thus submits that the order passed by the learned

Trial Court under Section 151 CPC for recalling the order dated 16.5.2011

is patently illegal and perverse. Counsel also submits that valuable right

accrued in favour of the petitioner with the dismissal of the application

of the respondent under Order 9 Rule 4 CPC, which right of the petitioner

could not have been defeated by the learned Trial Court by exercising

inherent powers of the Court that too in the face of specific legal remedy

available under law. In support of his arguments counsel for the petitioner

placed reliance on the judgment of the Apex Court in Manohar Lal

Chopra – vs-Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527

with special emphasis on para 21 of the same.

3. I have heard learned counsel for the petitioner at considerable

length and given my thoughtful consideration to the arguments advanced

by him.

4. The divorce petition filed by the respondent under Section

13(1)(ia) of the Hindu Marriage Act was dismissed by the learned

Matrimonial Court, not on merits but in default as nobody had caused

appearance for the respondent on 29.10.2010 when the said petition was

taken up by the Court. To seek restoration of the said petition the


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respondent/petitioner had moved an application under Order 9 Rule 4

CPC and the said application moved by the respondent was opposed by

the petitioner/respondent primarily on two grounds; firstly that the same

was filed invoking a wrong provision of law and secondly on account

of the failure of the respondent/petitioner in not making a payment of Rs.

5,000/-towards the maintenance of the child. On the first objection raised

by the petitioner/respondent, the learned Court observed and rightly so

that the application cannot be rejected merely because it was filed invoking

a wrong provision of law. So far as the second objection raised by the

petitioner is concerned, the Court directed that the restoration application

moved by the respondent/petitioner would be considered only when the

respondent/petitioner complies with the directions with regard to the

payment of the maintenance amount for which he sought four weeks

time for compliance. The matter was adjourned by the Court for 2nd

May, 2011 when again the learned Trial Court reiterated its earlier direction

to make the payment towards the maintenance amount for considering

his restoration application and the matter was adjourned by the learned

Trial Court for 16th May, 2011. On 16th May, 2011 the said application

moved by the respondent/petitioner was dismissed for non-prosecution

because of non-compliance of the said direction by the respondent/

petitioner to liquidate his liability towards the arrears of maintenance

amount. It is thereafter that the respondent/petitioner had moved an

application under Section 151 CPC to seek recalling the 16th order dated

May, 2011 and then to consider his application moved by him under

Order 9 Rule 4 CPC to seek restoration of his petition.

5. It is a settled legal position that the power under Section 151

CPC is an addition to and complimentary to the powers expressly conferred

under the Code and can be exercised by the Courts to make a suitable

order to prevent the abuse of the process of Court and can be exercised

when there is no specific provision dealing with the grant of relief as

sought. It is also well settled that nothing can limit or affect the inherent

powers of the Court to meet the ends of justice as power exercised by

the Court under Section 151 CPC is ex debito justitiae; to do real and

substantial justice for the administration of which alone the Court exists

or to prevent abuse of the process of the Court. The inherent powers of

the Court are with respect to the procedure followed by the Court in

deciding the cause before it and are conferred under the Code, but

certainly the Courts will not exercise inherent powers when such power

could clearly conflict with the powers expressly or by necessary implication

conferred on the Courts by the other provisions of the Code. In the case

at hand, the learned Matrimonial Court did not dismiss the application

moved by the respondent/petitioner under Order 9 Rule 4 CPC on merits,

but only on the ground that the respondent/petitioner had failed to comply

the direction given by the Court to pay the arrears of the maintenance

amount as a condition precedent to consider his restoration application.

The said order of the learned Matrimonial Court giving the aforesaid

direction to the respondent/petitioner, to first pay the amount of

maintenance and then to consider his application for restoration was

certainly exercised by the said Court invoking its inherent powers as

otherwise the Court was well within its jurisdiction to have first decided

the said application of the respondent/petitioner looking into the sufficiency

of reasons given by the respondent for his non-appearance on 29.10.2010

when the said divorce petition filed by him was dismissed in default. It

is a well accepted principle of practice that with a view to do complete

justice between the parties, the Courts exercise their inherent powers and

exercise of such powers by the Courts may not specifically fall under

any specific provisions of the Code. The direction given by the Matrimonial

Court to the respondent/petitioner to first pay the arrears of the

maintenance amount to consider his restoration application was in exercise

of such power by the Matrimonial Court, therefore, it cannot be said that

the learned Trial Court had in fact dismissed the application of the

respondent moved by him although wrongly labeled under Order 9 rule

4 CPC on its merits, but in fact the said application was dismissed by

the learned Trial Court for non-prosecution. In the application moved by

the respondent under Section 151 CPC, recalling of the order dated

16.5.2011 was sought by him on the ground that already he had paid an

amount of Rs. 90,000/-towards the arrears of the maintenance amount

and for the balance amount of Rs. 30,000/-he undertook to pay the same

within a period of three months. With the said payment of the maintenance

amount and the undertaking of the respondent to pay further amount of

maintenance, the learned Trial Court found the conduct of the respondent

justifiable for recalling the order dated 16.5.2011 and for restoring his

application under Order 9 Rule 9 CPC. Learned Trial Court in para 7 of

the impugned order clearly observed that the application of the respondent

moved by him under Order 9 Rule 9 was rejected only for want of


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payment of the maintenance amount and since the respondent could be

said to have paid the said amount with the said undertaking there was no

reason left for the Court to deny the prayer of the respondent to seek

restoration of his divorce petition. This Court does not find any illegality

or perversity in the impugned order passed by the matrimonial Court

invoking its inherent power under Section 151 CPC and this Court also

does not find that any jurisdictional error was committed by the said

Court in allowing the application of the respondent moved by him under

Order 9 Rule 9 CPC (wrongly labeled under Order 9 Rule 4 CPC). This

Court has taken a consistent view that the matrimonial disputes needs to

be adjudicated on its merits and the substantive rights of the parties

cannot be defeated by adopting a hypertechnical approach that too on the

basis of procedural niceties.

6. It cannot be forgotten that procedural laws are handmaids of

justice and cannot come in the way of advancing the cause of justice.

As is held by the Apex Court time and again procedural law is not to be

a tyrant but a servant, not an obstruction but an aid to justice and hence

cannot stop the Court to give relief on merits to the parties.

7. The judgment cited by the petitioner also reiterates the settled

legal position with regard to powers under Section 151 of the and would

not thus help the petitioner to persuade this Court otherwise.

8. In the light of the above, there is no merit in the present petition

and the same is hereby dismissed.


W.P. (C)

KATHURIA PUBLIC SCHOOL ....PETITIONER

VERSUS

UNION OF INDIA ....RESPONDENT

(BADAR DURREZ AHMED & V.K. JAIN, JJ.)


Land Acquisition Act, 1894—Sections 4, 6 & 48—Land

measuring 80 bighas 7 biswas situated in village

Rangpuri @ Malikpur Kohi (Vasant kunj) Tehsil Mehrauli

notified under section 4 and 6 of the Act vide

notification dated 23.01.1965 and 26.12.1965

respectively followed by an award passed in the year

1981—Petitioner alleged that possession of aforesaid

land was not taken by the Government—Land purcahse

by petitioner No. 3 Shri Ram Saroop Kuthuria as karta

of HUF vide sale deed dated 18th April 1967 executed

by Smt. Saroop devi, Smt. Sarjo and Smt. Bartho—

Petitioner sought release of land under Section 48—

Petitioner claimed to be running a school under the

name and style of Kuthuria Public School since 1988

on the said land—Representation moved on 17.08.1995

01.01.1996 and 11.11.1996—No response to the

representations—Petition seeking direction to direct

the respondents to decide the representations and

not to demolish any part of building—Respondent

contended—Possession of entire land taken except 9

Biswas where some built up structure was found—

Petitioner No.3 purchased the land after notification

under Section 4 of Act—Raised illegal construction

during pendency of earlier writ petition without any

sanction from the competent Authority—


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Kathuria Public School v. Union of India (V.K. Jain, J.) 653 654

Representations were placed before De-notification

committee—Rejected—Petitioners have no right—

Held—Since De-notification Guidelines issued by the

Government do not permit de-notification of land in

question, which the petitioners purchased after

issuance of notification under Section 4 of Land

Acquisition Act, no ground exist to direct the

Government either to de-notify this land or to re-

consider the representations of the petitioners—The

writ petition dismissed—The interim orders passed in

favour of the petitioners during pendency of the writ

petition are vacated.

[Vi Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. N.K. Kaul, Sr. Advocate with

Mr. Gaurav Sarin, Advocate with

Ms. Charul Sarin & Mr. Ajay Bouri,

Advocates.

FOR THE RESPONDENT : Mr. Sanjay Poddar, Sr. Advocate

with Mr. Sanjay Kr. Pathak & Mrs.

Mohitrao Jadhav, Advocate for UOI

& LAC Mr. Summet Batra, Advocate

for D. Ed. Mr. Sanjeev Sachdeva,Sr.

Advocate with Ms. Roohi Kohli, Mr.

P.P. Singh & Ms. Priyanjan Mehta,

Advocates Mr. Ajay Verma with Mr.

Amit Mehra Advocate for DDA.

CASES REFERRED TO:

1. Banda Development Authority vs. Moti Lal Agarwal &

Ors. (2011) 5 SCC 394.

2. DDA vs. R.S.Kathuria 2009(7) AD (Delhi) 265.

3. Sita Ram Bhandar Society, New Delhi vs. Lt. Governor,

Govt. of N.C.T. Delhi and Ors. 2009 (10) SCC 501.

4. Shanti Sports Club and Anr. vs. Union of India (UOI)

and Ors. 2009 (15) SCC 705.

5. Sethi Auto Service Station vs. DDA (2009) 1 SCC 180.

6. National Thermal Power Corporation Ltd. vs. Mahesh

Dutta & Ors. (2009) 8 SCC 339.

7. Murari and Ors. vs. Union of India (UOI) and Ors. AIR

(1997) 1 SCC 15.

8. Yadu Nandan Garg vs. State of Rajasthan and Others:

AIR 1996 Supreme Court 520.

9. Roshanara Begum vs. Union of India: AIR 1996 Delhi

206.

10. Smt. Sneh Prabha etc. vs. State of U.P. and Another:

AIR 1996 Supreme Court 540.

11. Union of India vs. Shri Shivkumar Bhargava and Ors.

(1995) 6 JT (SC) 274: (1995) AIR SCW 595).

12. Chandigarh Administration vs. Jagjit Singh: (1995) 1 SCC

745.

13. Home Secretary, UT of Chandigarh & Anr. vs. Darshjit

Singh Grewal & Ors. (1993) 4 SCC 25.

14. Balwant Narayan Bhagde vs. M.D.Bhagwat & Ors. (1976)

1 SCC 700.


V.K. JAIN, J.

1. Land measuring 80 bighas 7 biswas comprised in Khasra Nos.

1726 (3-3), 1727 (4-16), 1728 (2-12), 1729 (6-14), 1747 (4-16), 1748

(4-16), 1749 (4-16), 1750 (4-16), 1751 (4-16), 1752 (4-16), 1753 (3-

5), 1754 (6-2), 1755 (4-16), 1756/2 (3-4), 1757/2 (3-4), 1875 (4-16),

1876 (4-16) and 1877 (4-3) in village Rangpuri alias Malikpur Kohi

(Vasant Kunj) Tehsil Mehrauli was notified under Sections 4 & 6 of the

Land Acquisition Act vide notifications dated 23.1.1965 and 26.12.1965

respectively followed by an award passed in the year 1981. The case of

the petitioner is that possession of the aforesaid land was not taken by

the Government whereas the case of the respondents is that possession

of the entire land except 9 biswas was taken on 31.3.1981 and was

handed over to DDA vide notification dated 19.5.1981 issued under

Section 22(1) of Delhi Development Act. The aforesaid land was purchased


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655 656Kathuria Public School v. Union of India (V.K. Jain, J.)

by petitioner No.3 Shri Ram Saroop Kathuria as karta of a HUF consisting

of himself and his sons, vide sale deed dated 18th April, 1967 executed

by Smt. Saroopi Devi, Smt. Sarjo and Smt. Bartho in his favour.

2. The acquisition of land was challenged by the petitioners by

filing Civil Writ Petition No. 586/1981. An interim order was passed by

this Court on 24.3.1981, directing status quo with respect to possession

of the land subject matter of the Writ Petition. The interim order, which

is alleged to have been served on Land & Building Department of

Government of NCT of Delhi on 31.03.1981, was confirmed on 10.4.1981.

3. Vide representation dated 17.8.1995 the petitioners sought release

of the aforesaid land under Section 48 of Land Acquisition Act. The Writ

Petition came to be dismissed in terms of Full Bench decision of this

Court in Roshnara Begum’s case dated 24.12.1995. The petitioner filed

a Special Leave Petition in Supreme Court against the order of the Full

Bench. The Special Leave Petition came to be dismissed by Supreme

Court on 1.11.1996. During the course of hearing before the Supreme

Court Mr. N.N.Goswami, Counsel for the respondent made a statement

that the Government will consider each of the structures and take decision

in that respect.

The petitioners, who claim to be running a school under the name

and style of Kathuria Public School on the land in question since 1988

and allege to have constructed a school building along with staff quarters

and boundary wall on it, vide another representation dated 01.01.1996,

again sought release of the land from acquisition seeking parity with the

case of Hamdard Public School land of which was de-notified by the

Government. The petitioners submitted yet another representation dated

11.11.1986 seeking release of their land on the parity of the case of St.

Xavier Society land of which was released from acquisition on 06.9.1996

as well as the case of Hamdard Public School. Since there was no

response to the representations made by the petitioners, this writ petition

came to be filed alleging selectivity by the respondents in de-notification

of acquired land. The petitioners sought writs directing the respondents

to decide their representations dated 17.8.1995, 01.1.1996 and 11.11.1986.

They also sought directions to the respondent not to demolish any part

of the building which they have constructed on land in question and not

to take its physical possession from them.

4. In their counter-affidavit, respondent No. 2 Lieutenant Governor

of Delhi and respondent No. 3(i) Government of National Capital Territory

of Delhi, through Secretary, Land and Building Department, have alleged

that petitioners have concealed facts from the Court since they did not

disclose that land in question was purchased by petitioner No. 3 vide sale

deed dated 18th April, 1967 after land in question had been notified for

acquisition. It is also alleged that while taking possession, except in

respect of 9 biswas of land comprised in Khasra No. 1877 where some

built up structure was found, the respondents had allowed petitioner No.

3 to harvest the cultivation on Khasra Nos. 1726, 1727, 1728, 1729,

1747-1755, 1756/2, 1757/2 and the land stands vested in the Government

free from all encumbrances. It is further alleged that petitioner No.3

purchased the land after notification under Section 4 of Land Acquisition

Act and raised illegal construction during pendency of the earlier writ

petition, without any sanction from the Competent Authority. It is stated

that the representation of the petitioners was placed before the De-

notification Committee, which, after deliberations, recommended its

rejection. Explaining circumstances in which certain acquired land came

to be de-notified under Section 48 of Land Acquisition Act, the respondents

have contended that the petitioners cannot claim any legal right to seek

de-notification of their land, particularly when they purchased it after

issuance of notification under Section 4 of Land Acquisition Act. According

to the respondents, the facts of the present case are altogether different

from the facts of the cases in which the land was de-notified. It is also

submitted that since possession of the land has been taken, it cannot be

withdrawn from acquisition.

5. In his counter-affidavit, filed on behalf of respondent No. 4-

DDA, Mr Shamim Ahmed, Director (Land Management), has stated that

the Land Acquisition Collector took over the possession of the entire land

except an area, measuring 9 biswas on 31.3.1981. The possession of 9

biswas of land comprised in Khasra No. 1877 could not be taken since

a temporary structure existed on this piece of land. The land measuring

79 bighas and 18 biswas, according to DDA, was handed over to it by

Land and Building Department on 31.3.1981 when the possession was

taken by it. This was followed by notification dated 19.5.1981, issued

under Section 22 of Delhi Development Act placing the aforesaid land at

the disposal of DDA for its management and development in accordance

with Master Plan. It is also alleged that the petitioners having encroached


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upon public land, their possession is that of trespassers and that the case

of the petitioners is not similar to the case of Hamdard Public School and

St. Xavier School.

6. The writ petition was amended so as to rely on the policy

guidelines framed by the Government in November, 1998 for de-notification

of acquired land and to claim that the petitioners were covered under the

aforesaid policy. It was also alleged that the respondents had de-notified

the land of Scindia Potteries, situated on Ring Road, vide notification

dated 05.2.1999. The petitioners also sought to rely upon a noting dated

05.05.1999 by Mr U.P. Singh, OSD (Litigation), Land & Building

Department in the file relating to land of the petitioners as well as the

letter dated 26.5.1999, written by Mr Shamim Ahmed, Director (Land

Management), DDA to the Deputy Secretary, Land & Building Department.

The petitioners also referred to the de-notification of the land of Ramjas

Foundation Society on 04.4.2002. They further contended that since the

De-notification Committee, as constituted by Competent Authority, had

not met on 27.1.1999, the recommendation made in the meeting held on

that day was of no legal consequence. In the amended writ petition, the

petitioners sought Writ of Mandamus, directing the respondents to release

and de-notify their land under Section 48 of Land Acquisition Act, correct

the alleged possession proceedings dated 31.03.1981 and Notification

dated 19.05.1981 issued under Section 22 (1) of Delhi Development Act.

They also sought direction to the defendants not to demolish any of their

buildings.

In their additional affidavit, respondents No. 2 and 3(a) submitted

that the internal notings made by a particular officer in the official file

unless and until accepted by Competent Authority are not binding on the

Government and do not confer any legal right on the petitioners to seek

relief on the basis of such notings. It is also stated in the additional

affidavit that the Competent Authority, after considering the representation

made by the petitioners, had declined to release their land under Section

48 of Land Acquisition Act. It was also maintained that the cases of de-

notification, referred in the writ petition, were different and there was no

discrimination with the petitioners who are not similarly situated.

In the additional affidavit of its Director (Land Management), Mr

Suresh P. Padhy, respondent-DDA maintained that possession of 79

bighas and 18 biswas of land was taken over way back on 31.3.1981 and

the acquisition having become complete and absolute, the Government

has no power to issue notification under Section 48 of Land Acquisition

Act, to release the aforesaid land from acquisition.

Indian Spinal Injury Centre, to which land in question has since

been allotted by DDA, has also been impleaded as a party to the petition.

7. The petitioners have vide CM No. 1931/2011 on 10.02.2011

sought permission to place an additional affidavit on record. In the additional

affidavit, they have alleged that during pendency of this petition, the

petitioners were, on 28.02.2000, handed over the rejection dated

27.01.1999, whereby their representations were rejected by the Lieutenant

Governor of Delhi. It would thus be seen that the representations made

by the petitioners from time to time seeking de-notification of the acquired

land have since been rejected. However, during the course of arguments

before us, the prayer of the learned counsel for the petitioners was to

direct the respondents to re-consider their representations on the premise

that possession of the acquired land was not taken from them on

31.03.1981.

8. In support of his contention that actual physical possession of

land measuring 79 bighas and 18 biswas was taken by the Government,

from the land owners, the learned Senior Counsel for Govt. of NCT has

relied upon the Possession Report dated 31.3.1981 which shows that on

that day when the revenue officials went to the site, Kharag Bahadur,

employee of Mr R.S. Kathuria was amongst the persons present on the

spot at that time. It would be pertinent to note here that the petitioners

themselves have filed a copy of this report and there is no averment by

them that Mr Kharag Bahadur was not an employee of Mr R.S. Kathuria

or that he was not present at the site on 31.03.1981. The report reads

as under:

“As per order of L.A.C. I along with Sarup Singh Kanogo, L.A.;

Shri Harpal Singh Patwari, L.A. & Shri Rajinder Singh Peon L.A.

reached the spot in Village Rangpuri. Shri Raj Bahadur Naib

Tehsildar, DDA, Shri Niranjan Singh Patwari, DDa; Sasrdar

Bhagat Singh, Naib Tehsildar, Horticulture, DDA, Shri B.S.

Aggarwal, Naib Tehsildar, Land & Building Department were

also present with Shri Gopal Sharma & Prem Singh Servants of

Ram Prasad and Kharag Bahadur, servant of Ram Sarup Kathuria


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and Ashok Kumar owner were present at the spot. The

proceedings relating to possession were started.

1279 (6-0), 1280 (3-12), 1281/1(3-8), 1281/2 (1-8), 1282 (4-

16), 1295 (0-5), 1296 (4-11), 1297 (4-16), 1298/1 (0-160 1298/

2 (2-00), 1299 (7-4), 1300 (5-8), 1301 (3-14), 1302/1 (1-16),

1302/2 (3-00), 1303/1 (1-9), 1303/2 (0-17), 1303/3 (2-10), 1304/

1 (4-8), 1304/2 (0-8), 1305 (4-16), 1307 (4-16). 1308/1 (2-9),

1308/2 (2-7), 1309 (4-16), 1310/1 (2-8), 1310/2 (2-8), 1311 (2-

10), 1312 (6-10), 1313/1 (3-00), 1313/2 (1-16), 1314 (4-16),

1315 (6-18), 1316 (4-6). 1317 (4-16), 1318 (5-16), 1319 (3-8),

1320 (4-16) , 1321 (5-9), 1322 (3-5), 1323 (4-6), 1324 (6-18),

1325 (6-2), 1327/1 (2-19), 1327/2 (1-19). 1331 (3-8), 1332 (5-

11), 1333 (1-16), 1334 (2-1), 1335 (1-1), 1336 (2-6), 1337 (5-

13), 1338 (5-4), 1339 (4-16), 1340 (3-5). 1341 (6-7), 1342 (5-

19), 1343 (4-8). 1344 (3-12). 1345 (2-12), 1346 (6-8), 1347 (4-

16), 1348 (4-16), 1349 (4-16), 1350 (4-16), 1351 (4-16), 1352

(4-16), 1353 (4-16), 1354 (4-16), 1355 (4-16), 1356 (4-16),

1357 (3-16), 1358 (2-16), 1359 (4-16), 1360 (4-16), 1361 (4-

16), 1362 (4-16), 1363 (4-16), 1364 (4-16), 1365 (4-12), 1366

(2-8), 1367 (2-9), 1368 (4-16), 1369 (8-3), 1370 (4-16), 1371

(3-14), 1372/1 (5-15), 1372/2 (1-4), 1373 (4-16), 1374 (6-8),

1375 (3-12), 1376/1 (2-19), 1376/2 (0-17_, 1376/3 (1-5), 1377

(5-12), 1378 (0-10), 1379 (3-18), 1380 (4-16), 1381 (2-16),

1382 (6-00), 1381/12 (2-0), 1383(4-16), 1384 (3-4), 1385 (4-

16), 1386 (4-16), 1512 (4-16), 1517 (2-16). 1518 (4-16), 1519

(3-10), 1520/1 (4-16), 1520/2 (1-11), 1521 (4-16), 1522 (4-16),

1523 (3-14) 1726 (3-3), 1727 (4-16), 1728 (2-12), 1729 (6-14),

1731 (2-5), 1732/1 (2-4), 1732/2 (2-12), 1733 (4-16), 1734 (4-

2), 1735 (1-7), 1736 (4-13), 1737/1 (0-18), 1737/2 (0-12), 1738

(1-4), 1739 (0-1), 1741 (0-4), 1742/1 (2-7), 1744 (4-9), 1745

(4-16), 1746 (4-16), 1747 (4-16), 1748 (4-16) 1749 (4-16),

1750 (4-16), 1751 (4-16), 1752 (4-16), 1753 (3-5), 1754 (6-2),

1755 (4-16), 1756/1 (1-12), 1756/2 (3-4), 1757/1 (1-12), 1757/

2 (3-4), 1758 (4-16), 1759 (4-16), 1760 (4-16), 1761 (4-16),

1762 (4-16), 1763 (4-16), 1767 (4-16), 1768/2 (2-9), 1769/1 (2-

9), 1769/2 (2-7), 1875 (4-16), 1876 (4-16), 1877 (3-14), 1878

(7-00) measuring 633-17 its physical possession is taken and

given to Shri B.S. Aggarwal, Naib Tehsildar, L&B Deptt on all

four Sides on the spot, pillar have been installed. Possession of

Khasra Nos. 1310/1 less than one biswa 1337 (1-0), 1338 (1-0),

1341 less than one biswa, 1342 less than one biswa, 1348 less

than one biswa, 1358 (2-0), 1365 less than one biswa, 1379 (0-

2), 1523 less than one biswa, 1736 less than one biswa, 1877

(0-9) Total Area 5-12 has not been taken being built up.

Possession of Khasra No. 1742/2 (2-5), 1743 (4-15) total 7-0

bigha has not been taken due to stay from High Court.

There is crop in Khasra Nos. 1296, 1293 1294, 1304/1, 1303/

1, 1372/2, 1380, 1379, 1522, 1521, 1726, 1727, 1728, 1729,

1747, 1748, 1749, 1750, 1751, 1752, 1753, 1754, 1755, 1756/

2, 1757/2. The owners have been allowed to harvest the crop.

L.A.C. is present at the spot. Notices under his signature have

been issued to Ram Sarup Kathuria and Ram Prasad etc that they

should vacate the built up area & service is affected in his

presence. Munadi to this effect has also been done loudly by

Ram Chand Patwari, LA & by beat of canister. No retaliation

took place at the time of taking possession. The proceedings

regarding possession are complete. Patwari halqua is not present

at the spot so a copy of possession report will be sent to him

through the Tehsildar Mehrauli, so that necessary entries are

made in the revenue record.

31-3-81

Sd/- Sarup Singh Girdawar

Sd/- Gopal Sharma servant of Ram Prashad

Sd/- Naib Tehsildar

Thumb impression of Prem Sharma Servant of Ram Prashad

Sd/- Kharak Bahadur

Sd/- Daya Nand Lambardar

Sd/- Raj Bahadur Naib tehsildar DDA

Sd/-Rajinder Singh

d/- Naib Tehsildar, L&B

Sd/- Hari Chand Patwari, DDA” (emphasis supplied)

The contention of Mr Poddar was that actually physical possession


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of land in question, except a small piece where some built up structures

were found, was taken over by the revenue officials in the presence of

the representative of petitioner No. 3 R.S. Kathuria on 31.3.1981 and

thereafter petitioner No. 3 was allowed to harvest the crop found cultivated

on Khasra Nos. 1726, 1727, 1728, 1729, 1747-1755, 1756/2, 1757/2 so

that there is no loss of crop to him. The contention of Mr Poddar was

that had possession of the cultivated land not been taken, there would

have been no occasion for the revenue officials to permit petitioner No.

3 to harvest the crop, since in that case possession remaining with him,

no such permission would have been necessary. It was also submitted

that the crop standing on the aforesaid land would in normal course have

been harvested within a month or so of the Government taking possession

of the cultivated land. This was also the contention of Mr. Poddar that

land measuring 79 bighas and 18 biswas being unbuilt and unoccupied

land, the revenue officials were not required to do anything more than

what they actually did on 31.3.1981.

9. As against this, the learned Counsel for the petitioners contended

that actual physical possession of land in question was not taken by the

revenue officials on 31.1.1981 and it is the petitioners who continued to

retain physical possession, as would be evident from the survey reports

which the officials of the respondents prepared on inspection of the site

and which confirmed that the buildings of the petitioners existed on the

land in question. It was also contended that since this Court vide interim

order dated 24.3.1981 passed in C.W.P. 586/1981 had directed status

quo with respect to possession of land in question, the possession even

if it is assumed to have been taken by the respondents on 31.3.1981

would be void ab initio and non est in law, which the Court is required

to ignore from consideration. It was also submitted that when the Court

passes such an order it not only directs but also presumes that the

position which existed at the time of passing the order continues to exist

and any other construction of law on the subject would be contrary to

public interest and subvert the cause of justice. This however, was

countered by Mr. Poddar, who submitted that the interim order dated

24.3.1981 was not served upon the revenue officials before they took

possession on 31.3.1981. This, according to Mr Poddar, has been the

consistent stand of the respondents and was accepted by this Court in

FAO(OS) No. 313/2007 and 27/08. It was also submitted by Mr Poddar

that in any case since the interim order passed by the Court in Civil Writ

Petition No. 586/1981 which was confirmed on 10.4.1981, came to an

end on dismissal of the Writ Petition, there being no impediment in the

way of the respondents taking possession of the land in question, nothing

more was required to be done by them to take physical possession of

land in question, they having already possessed it on 31.03.1981. It was

also submitted by Mr. Poddar that physical possession taken by the

petitioners after 31.03.1981 would amount to trespass and being trespassers

the petitioners have no right in law to maintain this petition. Mr. Poddar

in support of his contention that the respondents had taken actual physical

possession of the land measuring 79 bighas 18 biswas on 31.3.1981

heavily relied upon the decision of this Court in DDA v. R.S.Kathuria

2009(7) AD (Delhi) 265 which was a litigation inter se between the

parties to this petition and the order passed by this Court in Review

Petition No. 41/2009 in FAO (OS) No. 313/2007 and Review Petition

No. 47/2009 in FAO (OS) No. 27/2008 which the petitioners had filed

against that decision. Mr. Poddar drew our attention to the following

view taken by the Division Bench of this Court in that case:

In the present case, the Award was passed on 30th March, 1981

and the possession was taken on 31st March, 1981 before the

interim orders were communicated to the appellant. The continued

possession of the respondent No.1 pursuant to the said orders of

the Court cannot be treated as possession for the purpose of

section 16 of the LA Act and on the dismissal of challenge of

respondent No.1 to the acquisition proceedings; the said

respondent no.1 has no longer any claim in respect of the same.

x x x x

In view of the facts of the present case, we feel that the learned

Single Judge was not right in observing that the respondent No.1

is in possession as the said possession is pursuant to the interim

orders of this Court. It is a matter of fact that the said interim

order stands vacated on the dismissal of the SLP by the Supreme

Court. The learned Single Judge wrongly observed that the

appellants have not taken the actual physical possession or

symbolic possession and therefore the suit is maintainable for

determination of the same. The said finding of the learned Single

Judge was contrary to the facts of the present case as the

Award having been passed on 30th March, 1981, the question of


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the appellants not taking the symbolic and physical possession

does not arise as the authorities are free to take the actual

possession on the vacation of the interim orders passed in the

writ petition filed by respondent No.1.

Mr Poddar pointed out that while arguing the Review Petitions, the

petitioners had contended that there was an error apparent on the face

of the record in the Court observing in para 44 that “Award having been

passed on 30.3.1981 the question of the appellants not taking the symbolic

and physical possession does not arise as the authorities are free to take

the actual possession on the vacation of the interim order passed in the

writ petition filed by the respondent No.1”. Mr Poddar also pointed out

that the contention of the petitioners in the Review Petition was that the

action of taking possession of land on 31.3.1981 cannot negate the legal

sanctity of status quo order passed on 24.3.1981 and that the observations

contained in the order dated 28.11.2008 to the effect that the possession

of land which was taken on 31.3.1981 may come in the way of the

applicants in seeking other remedies. The learned Counsel then drew our

attention to the following observations made in the order:

x x xConsidering in the backdrop that the writ petition filed by

the respondent No.1 challenging the acquisition had been ultimately

dismissed by this Court, which had the effect of vacating the

interim order as well and further considering the judgment of

this Court was upheld by the Supreme Court in the case of

Murari & Ors. v. Union of India (UOI) & Ors. [(1997) 1

SCC 15]. View taken in the said judgment by the Apex Court,

we are of the considered view that there is no error apparent on

the face of record could be pointed out as to how this view is

incorrect. Insofar as the judgment relied upon by the learned

Counsel for the review petitioner is concerned, it is clear from

the reading of the said judgment that it was given on its own

facts in the context of the maintainability of petition under Section

48 of the Land Acquisition Act, there is no bearing insofar as the

facts of the present case is concerned.

When we read the grounds of appeal preferred by the appellants,

we are of the opinion that the appellants had taken categorical

stand that the possession of the land was taken on 31.03.1981

before the service of the status quo order was passed on

24.03.1981. In fact, in para 5 of the memo of party, it is

categorically averred that the LAC had passed the award on

30.03.1981 and possession of the land had been taken over

before the order of status quo was implemented, the writ petition

was dismissed by this Court on 14.12.1995. The respondent

No.1 (now deceased) challenged the judgment and order before

the Supreme Court and the SLP was also dismissed with the

bath of petitions. The pleadings are to be read in totality and

respondent No.1 cannot pick certain portions from there to suit

its advantage. Going by all these considerations, the issue in

question was decided in favour of the appellants and suit of the

respondent is dismissed as not maintainable. Insofar as this finding

is concerned, we are of the opinion that there is no error much

less errors apparent on the fact of record.

The learned Counsel for the petitioners however submitted that the

question as to whether possession of land in question was actually taken

by the respondents on 31.3.1981 or not was not the matter in issue

before the Division Bench and therefore the view taken therein is not

binding on the petitioners. The learned Counsel for the petitioners also

contended that the respondents were required to take physical possession

on the site in terms of Order 21 Rules 35, 36, 95 & 96 CPC and mere

symbolic possession by preparing a panchnama on the spot does not

meet the requirement of Section 16 of Land Acquisition Act.

10. In support of his contention, the learned Counsel for the

petitioners has relied upon National Thermal Power Corporation Ltd.

v. Mahesh Dutta & Ors. (2009) 8 SCC 339, Banda Development

Authority v. Moti Lal Agarwal & Ors. (2011) 5 SCC 394, Balwant

Narayan Bhagde v. M.D.Bhagwat & Ors. (1976) 1 SCC 700, order of

this Court in WP(C) No. 1907/1986 passed on 3.2.2010, order dated

25.2.2009 passed in WP(C) No. 1398/1994 and decision of this Court

dated 4.3.2010 in WP(C) No. 2563-66/2005. He pointed out that in

Banda Development Authority (supra), Supreme Court, after

considering its earlier decision on the subject had culled out the following

principles as regards the mode of taking possession of land acquired

under the provisions of Land Acquisition Act:


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(i) No hard and fast rule can be laid down as to what act would

constitute taking of possession of the acquired land.

(ii) If the acquired land is vacant, the act of the concerned State

authority to go to the spot and prepare a panchnama will ordinarily

be treated as sufficient to constitute taking of possession.

(iii) If crop is standing on the acquired land or building/structure

exists, mere going on the spot by the concerned authority will,

by itself, be not sufficient for taking possession. Ordinarily, in

such cases, the concerned authority will have to give notice to

the occupier of the building/structure or the person who has

cultivated the land and take possession in the presence of

independent witnesses and get their signatures on the panchnama.

Of course, refusal of the owner of the land or building/structure

may not lead to an inference that the possession of the acquired

land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be

possible for the acquiring/designated authority to take physical

possession of each and every parcel of the land and it will be

sufficient that symbolic possession is taken by preparing

appropriate document in the presence of independent witnesses

and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality

of the State and 80% of the total compensation is deposited in

terms of Section 17(3A) and substantial portion of the acquired

land has been utilized in furtherance of the particular public

purpose, then the Court may reasonably presume that possession

of the acquired land has been taken.

He also drew our attention to the following view taken in National

Thermal Power Corporation Ltd. (supra):

“.........The question as to whether actual physical possession

had been taken in compliance of the provisions of Section 17 of

the Act or not would depend upon the facts and circumstances

of each case.

27. When possession is to be taken over in respect of the fallow

or patit land, a mere intention to do so may not be enough. It

is, however, the positive stand by the appellant that the lands in

question are agricultural land and crops used to be grown therein.

If the lands in question are agricultural lands, not only actual

physical possession had to be taken but also they were required

to be properly demarcated. If the land had standing crops, as has

been contended by Mr. Raju Ramachandran, steps in relation

thereto were required to be taken by the Collector. Even in the

said certificate of possession, it had not been stated that there

were standing crops on the land on the date on which possession

was taken. We may notice that delivery of possession in respect

of immovable property should be taken in the manner laid down

in Order XXI Rule 35 of the Code of civil Procedure.”

Mr Poddar, however, submitted that though Land Acquisition Act

is a self-contained Act, even the requirement laid down in Order XXI

Rule 35 of CPC stood complied in this case since there was proper

demarcation on the spot by installing pillars on all four sites and there

was no resistance to the revenue officials taking possession on the site,

as would be evident from the Possession Report dated 31.03.1981.

11. Mr. Poddar, while maintaining that actual possession of land

measuring 79 bighas 18 biswas was taken on the site on 31.3.1981, and

that too before service of status quo order dated 24.3.1981 on the

respondents, contended that even a symbolic possession by preparing a

panchnama would be sufficient compliance of the requirement of Section

16 of Land Acquisition Act, where the acquired land is unbuilt land. It

was also submitted by him that in fact no resistance at all was offered

by petitioner No.3 when possession was taken by the revenue officials

on 31.3.1981. In support of his contention, Mr Poddar relied upon Sita

Ram Bhandar Society, New Delhi Vs. Lt. Governor, Govt. of N.C.T.

Delhi and Ors. 2009 (10) SCC 501. In particular, Mr Poddar relied

upon the following view taken by the Supreme Court:

“It would, thus, be seen from a cumulative reading of the aforesaid

judgments, that while taking possession of a large area of land

with a large number of owners, it would be impossible for the

Collector or the Revenue Official to enter each bigha or biswa

and to take possession thereof and that a pragmatic approach


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has to be adopted by the Court. It is also clear that one of the

methods of taking possession and handing it over to the beneficiary

department is the recording of a Panchnama which can in itself

constitute evidence of the fact that possession had been taken

and the land had vested absolutely in the Government.

Mr. Gupta has, with great emphasis, pointed out that from the

affidavit dated 30.07.1996 sworn by Mr. G.S. Meena, Under

Secretary, Land and Building Department, it was clear that the

appellant continued to remain in possession on account of the

stay of dispossession granted by the High Court on 15.07.1981

in WP No. 2220/1981 and the confirmation of the said order on

16.09.1982 and as such the stand of the appellants that possession

had been taken was not correct. We have, however, already

observed that possession had been taken between 20.06.1980

and 24.06.1980 and the acquired land thus stood vested in the

State free from all encumbrances under Section 16 of the Act.

It is also relevant that the afore-referred writ petition was dismissed

meaning thereby that the said order should automatically be

vacated as well. Even assuming for a moment that the petitioner

had re-possessed the acquired land at some stage would be of

no consequence in view of the provisions of Section 16 ibidem.

In Narayan Bhagde’s case (supra) one of the arguments raised

by the land owner was that as per the communication of the

Commissioner the land was still with the land owner and

possession thereof had not been taken. The Bench observed that

the letter was based on a misconception as the land owner had

re-entered the acquired land immediately after its possession had

been taken by the government ignoring the scenario that he

stood divested of the possession, under Section 16 of the Act.

This Court observed as under:

“29.....This was plainly erroneous view, for the legal position is

clear that even if the appellant entered upon the land and resumed

possession of it the very next moment after the land was actually

taken possession of and became vested in the Government, such

act on the part of the appellant did not have the effect of

obliterating the consequences of vesting.

To our mind, therefore, even assuming that the appellant had re-

entered the land on account of the various interim orders granted

by the courts, or even otherwise, it would have no effect for

two reasons, (1) that the suits/petitions were ultimately dismissed

and (2) that the land once having vested in the Government by

virtue of Section 16 of the Act, re-entry by the land owner

would not obliterate the consequences of vesting.”

12. During the course of arguments, the learned Counsel for the

petitioners relied upon the notings dated 6.4.1999 and 5.5.1999 recorded

by Shri U.P.Singh OSD (Litigation) in the relevant file of Land & Building

department and the letter dated 26.5.1999 written by Shri Shamim Ahmed,

Director (LM) HQ to DS (LA), Land & Building Department in support

of his contention that possession was not taken from the petitioners on

31.3.1981. This however, was controverted by the learned Counsel for

the respondents who submitted that the noting recorded by Shri U.P.Singh

was the view of an individual, which was not accepted by the competent

authority and therefore does not constitute the view of the Government

or an admission on its part. It was also pointed out that other Officers

who dealt with the file in Land & Building Department did not agree with

the view taken by Shri U.P.Singh. Mr. Poddar in this regard drew our

attention to the note dated 9.2.2000 recorded by Ms. Pratibha Karan,

Principal Secretary (PWD/L&B) whereby the file was placed before the

Lieutenant Governor and the recommendation of the De-notification

Committee was approved by him on 10.2.2000.

In his note dated 6.4.1999 Mr. U.P.Singh opined that since the

copy of status quo order dated 24.3.1981 had been served in Land &

Building Department on 31.3.1981, a mistake was committed by LAC in

possession proceedings dated 31.3.1981 by including disputed land along

with the other land acquired by the Government. He also noted that from

a perusal of page 2 of annexure P-V of the representation dated 24.2.1999,

it appeared that inspection of the disputed land was carried out by the

field staff and at that time it was found that a built up structure of senior

secondary school was functioning on it and a building occupied by

Oriental Bank of Commerce also existed on it. He was of the view that

if the possession of the disputed land was taken on 31.3.1981 prior to

service of status quo order, this should have been brought to the notice

of the High Court and the status quo order should have been got vacated.


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He thus opined that the possession proceedings dated 31.3.1981 being in

contravention of the status quo order dated 24.3.1981 were invalid and

illegal and need to be corrected.

We also find from the notings on the file that De-notification

Committee in its meeting held on 27.1.1991 recommended rejection of

the representation made by the petitioners on the ground that possession

of land in question was taken over on 31.3.1981 and the above referred

noting by Mr. U.P.Singh was made thereafter, on the representation

dated 24.2.1999 made by the petitioners.

We find that in the subsequent note dated 2.12.2000 Mr. V.B.Pandey,

Legal Advisor recorded that possession of the acquired land was taken

by LAC on 31.3.1981 because the status quo order was not served on

him. He also noted that DDA vide letters dated 7.1.2000 and 25.1.2000

had reiterated its stand that possession of the land was with them.

In her note dated 9.2.2000 Principal Secretary (PWD/L&B) noted

that as the order of this Court dated 24.3.1981 directing maintaining of

status quo was not served on the Land Acquisition Collector, the possession

of land was taken over on 31.3.1981 and handed over to DDA. She also

noted that though the contention of the petitioners was that the possession

of the land had remained with them, the record showed otherwise and

Additional Secretary (NCR) had confirmed that possession was with

DDA. She also noted that latest communication from DDA also showed

that physical possession of the land was transferred by LAC and Land

& Building Department to DDA vide notifications under Section 22(1) of

DDA Act.

It would thus be seen that the opinion of Mr. U.P.Singh was not

accepted by his superiors and certainly not by the Lieutenant Governor

who was the Competent Authority in the matter and before whom the

entire file which included the notings recorded by Mr. U.P.Singh, was

placed.

As regards the letter dated 26.5.1999 written by Mr. Shamim Ahmed

we find that in this letter he was only referring to the opinion of Mr.

U.P.Singh OSD (Litigation). He did say that the site was inspected by the

field staff and it was found that an authorized building of senior secondary

school existed there along with a nursery, playground, staff quarters and

a building occupied by Oriental Bank of Commerce. However, he did not

say that the inspection by the field staff was carried out on or before

31.3.1981. In fact, this is nobody’s case before us that the inspection

referred in the letter of Mr. Shamim Ahmed was carried out prior to

31.3.1981. No such inspection report has been filed by any of the parties

to this petition. We find merit in the contention of Mr. Poddar that if

possession of the land was taken over by revenue officials on 31.3.1981,

trespass on that land by the petitioners at a later date and construction

of buildings on it would be of no consequence and would not be recognized

by the Court. Mr. Poddar also pointed out to us that it was Mr. Shamim

Ahmed who filed counter affidavit in this behalf on behalf of DDA and

stated on oath that possession of land in question was taken over on

31.3.1981 and the land was placed at the disposal of DDA.

The following observations made by Supreme Court in Shanti

Sports Club (Supra) are pertinent with respect to notings/opinions

recorded by the Government Officers/Ministers on the file:

A noting recorded in the file is merely a noting simpliciter and

nothing more. It merely represents expression of opinion by the

particular individual. By no stretch of imagination, such noting

can be treated as a decision of the Government. Even if the

competent authority records its opinion in the file on the merits

of the matter under consideration, the same cannot be termed as

a decision of the Government, unless it is sanctified and acted

upon by issuing an order in accordance with Articles 77(1) and

(2) or culminated into an order affecting right of the parties only

when it is expressed in the name of the President or the Governor,

as the case may be, and authenticated in the manner provided in

Article 77(2) or Article 166(2). A noting or even a decision

recorded in the file can always be reviewed/reversed/overruled

or overturned and the court cannot take cognizance of the earlier

noting or decision for exercise of the power of judicial review.

In Sethi Auto Service Station v. DDA (2009) 1 SCC 180 Supreme

Court observed as under:

It is trite to state that notings in a departmental file do not have

the sanction of law to be an effective order. A noting by an

officer is an expression of his viewpoint on the subject. It is no


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more than an opinion by an officer for internal use and

consideration of the other officials of the department and for the

benefit of the final decision-making authority. Needless to add

that internal notings are not meant for outside exposure. Notings

in the file culminate into an executable order, affecting the rights

of the parties, only when it reaches the final decision-making

authority in the department, gets his approval and the final order

is communicated to the person concerned. Hence, we cannot

conclude, merely on the basis of the noting of Mr U.P. Singh

and/or the letter of Mr Shamim Ahmed that the possession of

land in question was not taken on 31.03.1981.

13. Policy Guidelines dated 02.12.1998 for de-notification of land

acquired under the provisions of Land Acquisition Act, which the

petitioners themselves have relied upon and placed on record, inter alia,

read as under:-

“4.0 CASE WHICH MAY BE CONSIDERED FOR

DENOTIFICATION

Cases of the following nature may be considered for

denotification:-

4.4 PROPERTIES BUILT-UP AFTER THE ISSUE OF

NOTIFICATION U/S.4 OF THE LAND ACQUISITION ACT,

1894.

(1) Land on which built-up structures have come up after issue

of notification under Section 4 of the Land Acquisition Act, shall

normally not be considered for denotification. However, if cluster

of largely residential structures has come up over a long period

of time and demolition of the structures shall cause immense

hardship to a large number of inhabitants, the following procedures

may be adopted: (a) Where there is a recommendation from a

technical department/committee of the Government, that the land

is inappropriate/unsuitable. (b) Where the feasibility studies if

any, conducted show that the land is not suitable for the public

purpose for which it is being acquired. (c) Where the colony

including the area in question has itself been regularized and

services handed over to MCD, the land may be recommended

for denotification.

(2) In all cases, a sub-committee comprising the Land Acquisition

Collector, a representative of Land & Building Department (not

below the rank of a Dy. Secretary) and a representative of DDA

(not below the rank of a Dy. Secretary), shall inspect the land

and submit a detailed report outlining the number and nature of

structures, the feasibility of taking over the land after demolition

of the structures, and the specific recommendation on

denotification of the land. The Denotification Committee shall

consider the report of the sub-committee, the comments of the

requisitioning department with specific reference to its need for

land, and then make a recommendation to the Lt. Governor for

considering or rejecting the proposal.”

It would thus be seen that the land on which structures have been

raised after issuance of notification under Section 4 of Land Acquisition

Act is not to be considered for notification, the exception being cluster

of largely residential structures, demolition of which shall cause immense

hardship to a large number of inhabitants. In the case before us, admittedly,

notification under Section 4 of Land Acquisition Act was issued on

23.01.1965. It is an admitted case that this land was purchased by

petitioner No. 3 vide Sale Deed dated 18.4.1967. The structures which

presently exist on this land, therefore, must necessarily have come up

only after 18.04.1967, which was more than two years after issuance of

notification under Section 4 of the Act. This is not the case of the

petitioners that residential structures exist on the land in question and

demolition of which would cause hardship to those who are living in

those residential structures. The case of the petitioners is that they are

running a school on this land, though the Survey Report, referred in the

notings in the file of Land & Building Department, shows that Oriental

Bank of Commerce is also being run in one of the buildings. The built-

up structures being used for running a school are not covered under the

exception carved out in clause 4.4 (1) of the guidelines and, therefore,

going by these guidelines, the Government/Lieutenant Governor cannot

de-notify land in question. We would like to note here that the guidelines

dated 02.12.1998 have not been challenged in this petition and have, in

fact, been relied upon by them on the premise that their case is covered

under them.


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14. During the course of arguments, it was contended by the

learned counsel for the petitioners that these guidelines having been issued

after they had already represented to the Government for de-notification

of their land, cannot be applied to their case. We, however, find no merit

in this contention for two reasons. Firstly, the petitioners themselves

having relied upon these guidelines and claiming to be covered under

them, it is not open to them to say that the guidelines cannot be applied

to their case. More importantly, the Government/Lieutenant Governor,

while deciding the representation(s), seeking de-notification of acquired

land, must necessarily be guided by the policy which is applicable on the

date they take decision on such representations. It would not be open to

the Government/Lieutenant Governor to ignore these guidelines and de-

notify the acquired land even in those cases where such de-notification

is not permissible.

As observed by Supreme Court in Home Secretary, UT of

Chandigarh & Anr. v. Darshjit Singh Grewal & Ors. (1993) 4 SCC

25, the policy guidelines of general applications relatable to the executive

power of the Government are binding on the Government and they are

bound to adhere to it unless the policy itself is changed.

Assuming that in one or more cases, the government has de-notified

acquired land even if it was purchased and construction on the land was

raised after issue of notification under Section 4 of Land Acquisition Act,

we cannot and ought not to perpetuate that illegality by directing the

government to once again commit breach of the guidelines issued by it

by de-notifying the land which the petitioners have purchased after issue

of notification under Section 4 of the Land Acquisition Act. The court

cannot be a party to such an illegality by giving directions sought by the

petitioners. Having issued a policy, the Government is duty bound to

rigidly follow the policy guidelines and therefore, all its actions in the

matter of de-notification of acquired land need to strictly conform to

those guidelines of general application.

15. We are in agreement with the learned counsel for the respondents,

who contended that the petitioners having purchased land in question,

after issuance of notification under Section 4 of Land Acquisition Act,

have no legal right to seek de-notification of the acquired land purchased

by them in this regard. We may, at this stage, refer to the decision of

Supreme Court in Smt. Sneh Prabha etc. Vs. State of U.P. and

Another: AIR 1996 Supreme Court 540. In that case, notification under

Section 4 of Land Acquisition Act was issued on 16.07.1960. The appellant

purchased land vide Sale Deeds dated 15.03.1967 and 27.03.1967. The

State Government issued what was known as ‘land policy’, to lease out

areas to the persons from whom the land was acquired. The appellant

applied for allotment of plot under the aforesaid policy. She also re-

deposited the compensation which she had received from Land Acquisition

Officer and sought allotment of land. The allotment was, however, denied

to her on the ground that she had purchased the land after issuance of

notification under Section 4 of the Act and, therefore, was not eligible

for allotment. After issuance of policy, the State Government issued two

G.Os. containing guidelines for implementation of the land policy. As per

those guidelines, the persons who had purchased the land after publication

of notification for its acquisition were not to be given any benefit under

the land policy. It was contended on behalf of the appellant that it makes

little difference if the subsequent purchaser steps into the shoes of the

owner of lays claim for allotment. The contention was, however, rejected

by Supreme Court which held that she was not entitled to benefit of the

land policy. Dismissing the appeal, Supreme Court held as under:

“It is settled law that any person who purchases land after

publication of the notification under Section 4(1), does so at his/

her own peril. The object of publication of the notification under

Section 4(1) is notice to everyone that the land is needed or is

likely to be needed for public purpose and the acquisition

proceedings points out an impediment to anyone to encumber the

land acquired thereunder. It authorises the designated officer to

enter upon the land to do preliminaries etc. Therefore, any

alienation of land after the publication of the notification under

Section 4(1) does not bind the Government or the beneficiary

under the acquisition. On taking possession of the land, all rights,

titles and interests in land stand vested in the State, under Section

16 of the Act, free from all encumbrances and thereby absolute

title in the land is acquired thereunder. If any subsequent purchaser

acquires land, his/her only right would be subject to the provisions

of the Act and/or to receive compensation for the land. In a

recent judgment, this Court in Union of India v. Shri


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Kathuria Public School v. Union of India (V.K. Jain, J.) 675 676

Shivkumar Bhargava and Ors. (1995) 6 JT (SC) 274: (1995)

AIR SCW 595) considered the controversy and held that a person

who purchases land subsequent to the notification is not entitled

to alternative site. It is seen that the Land Policy expressly

conferred that right only on that person whose land was acquired.

In other words, the person must be the owner of the land on the

date on which notification under Section 4(1) was published. By

necessary implication, the subsequent purchaser was elbowed

out from the policy and became disentitled to the benefit of the

Land Policy.

It would be pertinent to note here that even in the case before

Supreme Court, the policy guidelines came to be issued by the State

Government much after the acquired land had been purchased by the

appellant.

In Yadu Nandan Garg Vs. State of Rajasthan and Others: AIR

1996 Supreme Court 520, notification under Section 4(1) of Rajasthan

Land Acquisition Act, 1953 was published on 17.10.1963. The appellant

purchased land in question vide Sale Deed dated 15.07.1970 before issue

of declaration under Section 6 of the Act on 07.01.1991. The appellant

filed an application seeking exemption which was turned down. He then

filed a writ petition in the High Court which was rejected by the learned

Single Judge as well as by the Division Bench of the High Court. During

appeal before Supreme Court, it was contended on behalf of the petitioner

that Anand Nursery, which was adjacent to appellant’s site was given

exemption from acquisition, whereas the appellant’s site used for residential

purposes had not been exempted, which amounted to discrimination

offending Article 14 of the Constitution. The contention was, however,

rejected by Supreme Court. Dismissing the appeal, the Court, inter alia,

held as under:

“It is seen that long after the notification under Section 4(1) was

published in the Gazette, the appellant had purchased the property

and constructed the house thereon. Therefore, as against the

State his purchase was not lawful and it could not be used

against the State to cloth it with a colour of title as against the

State. It is in encumbrance against the State and when the

acquisition was finalised and the possession is taken, the State

under Section 16 is entitled to have the possession with absolute

title free from all encumbrances. The appellant cannot get any

title much less valid title to the property.”

We are of the view that irrespective of the fact that land in question

was purchased by the petitioner No. 3 before coming into force of Delhi

Land (Restriction on Transfer) Act, 1973 which specifically prohibits

such transfer, the purchase after issue of notifications under Section 4

of Land Acquisition Act would not clothe the petitioners with a right to

seek de-notification of the acquired land purchased by them.

16. It was also contended by the learned Counsel for the petitioners

that since the De-notification Committee which recommended rejection

of the representation of the petitioners was not properly constituted, the

recommendation made by it became vitiated in law and consequently the

possession taken on the basis of such a recommendation becomes

unsustainable. We however, find no merit in the contention. Para 22 of

the guidelines clearly stipulates that the recommendations made by the

De-notification Committee are not binding on the Lieutenant Governor,

who may take a decision on each recommendation, at his discretion.

Since the recommendations of the Committee are not binding on the

Lieutenant Governor, any irregularity in constitution of the Committee

becomes insignificant and does not vitiate the decision taken by the

Lieutenant Governor, who had the benefit of having the whole of the file

containing notings of various Officers as well as the correspondence,

with him at the time of taking decision in the matter.

17. As regards alleged discrimination with the petitioners on the

ground that the land belonging to Hamdard Public School, St. Xavier

Society, Ramjas Foundation and Scindia Potteries, etc. had been de-

notified while denying de-notification of the land of the petitioners, we

find that the respondents have duly explained the circumstances in which

the aforesaid lands were de-notified.

We also note that a similar contention citing the same instances of

de-notification of land was examined by Supreme Court in Shanti Sports

Club and Anr. Vs. Union of India (UOI) and Ors. 2009 (15) SCC

705. A perusal of the judgment would show that the appellants contended

that the Government was duty bound to treat them at par with others like

Hamdard Public School, St. Xavier School, Shahbad Estate Extension


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Welfare Association, Scindia Potteries, etc., whose land was released

from acquisition despite the fact that constructions were made after

issuance of a notification under Section 4(1) and declaration under Section

6 of the Act and in some cases even after the award was made. This

was also their contention that in view of the observations contained in

the last part of para 182 of the judgment of the Full Bench in Roshanara

Begum v. Union of India: AIR 1996 Delhi 206 and the statement made

by Shri N.N.Goswami, counsel for the State, which was recorded in

para 21 of the judgment of the Supreme Court in Murari and Ors. Vs.

Union of India (UOI) and Ors. AIR (1997) 1 SCC 15, the representations

made by them for release of the land could not have been rejected on the

ground that the construction had been raised after acquisition of land.

Rejecting the contention of the appellants, Supreme Court, inter alia,

observed as under:

“The concept of equality enshrined in that Article is a positive

concept. The Court can command the State to give equal treatment

to similarly situated persons, but cannot issue a mandate that the

State should commit illegality or pass wrong order because in

another case such an illegality has been committed or wrong

order has been passed. If any illegality or irregularity has been

committed in favour of an individual or a group of individuals,

others cannot invoke the jurisdiction of the High Court or of this

Court and seek a direction that the same irregularity or illegality

be committed in their favour by the State or its agencies/

instrumentalities. In other words, Article 14 cannot be invoked

for perpetuating irregularities or illegalities.”

Supreme Court, while rejecting the plea of discrimination taken by

the appellants, referred to the following observations made in Chandigarh

Administration v. Jagjit Singh: (1995) 1 SCC 745:

“Generally speaking, the mere fact that the respondent-authority

has passed a particular order in the case of another person

similarly situated can never be the ground for issuing a writ in

favour of the petitioner on the plea of discrimination. The order

in favour of the other person might be legal and valid or it might

not be. That has to be investigated first before it can be directed

to be followed in the case of the petitioner. If the order in favour

of the other person is found to be contrary to law or not warranted

in the facts and circumstances of his case, it is obvious that

such illegal or unwarranted order cannot be made the basis of

issuing a writ compelling the respondent-authority to repeat the

illegality or to pass another unwarranted order. The extraordinary

and discretionary power of the High Court cannot be exercised

for such a purpose. Merely because the respondent-authority has

passed one illegal/unwarranted order, it does not entitle the High

Court to compel the authority to repeat that illegality over again

and again. The illegal/unwarranted action must be corrected, if

it can be done according to law — indeed, wherever it is possible,

the Court should direct the appropriate authority to correct such

wrong orders in accordance with law — but even if it cannot

be corrected, it is difficult to see how it can be made a basis for

its repetition. By refusing to direct the respondent-authority to

repeat the illegality, the Court is not condoning the earlier illegal

act/order nor can such illegal order constitute the basis for a

legitimate complaint of discrimination. Giving effect to such pleas

would be prejudicial to the interests of law and will do incalculable

mischief to public interest. It will be a negation of law and the

rule of law.

In other words, the High Court cannot ignore the law and the

well-accepted norms governing the writ jurisdiction and say that

because in one case a particular order has been passed or a

particular action has been taken, the same must be repeated

irrespective of the fact whether such an order or action is contrary

to law or otherwise. Each case must be decided on its own

merits, factual and legal, in accordance with relevant legal

principles. The orders and actions of the authorities cannot be

equated to the judgments of the Supreme Court and High Courts

nor can they be elevated to the level of the precedents, as

understood in the judicial world.”

With respect to the observations made by the Full Bench of this

Court in Roshanara Begum (supra) and the statement made by Shri

N.N. Goswami before Supreme Court in the Case of Murari and Ors.

(supra), the Court observed as under:

“59. In our opinion, the Government’s decision not to withdraw

from the acquisition of land in question or de-notify the acquired


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land, does not suffer from the vice of discrimination or arbitrary

exercise of power or non application of mind. With due deference

to the Full Bench of the High Court which disposed of the batch

of writ petitions and miscellaneous applications, the observations

contained in the last part of paragraph 182 of the judgment

suggesting that the petitioner/applicant can make representation

for release of the land and the concerned authorities can examine

whether the sports complex could serve the purpose of acquiring

the land for the particular scheme or the scheme can be modified

or amended in respect of the land in question were nothing more

than pious hope and the Government rightly did not take them

seriously because in the same paragraph the Full Bench

unequivocally ruled that the land is required for residential scheme

of Vasant Kunj and the sports complex built by the applicant was

not in consonance with the public purpose for which the land

was earmarked in the scheme.

The statement made by the counsel representing the State before

this Court which finds mention in paragraph 21 of the judgment

in Murari v. Union of India (supra) was neither here nor there.

It did not amount to a commitment on behalf of the Government

that representations made for release of land will receive favourable

consideration. In any case, once this Court had made it clear in

Murari v. Union of India (supra) that in a matter involving

acquisition of thousands of acres of land, it would not be proper

to leave out some small portions here and there over which some

construction may have been made, the decision of the Government

not to withdraw from the acquisition of the land in question

cannot be faulted.”

18. Dealing with the plea of discrimination in the matter of application

of land policy, Supreme Court, in the case of Smt. Sneh Prabha (supra),

inter alia, observed as under:-

“Even if a benefit is wrongly given in favour of one or two, it

does not clothe with a right to perpetuate the wrong and the

Court cannot give countenance to such actions though they are

blameworthy and condemnable. Equality clause does not extend

to perpetuate wrong nor can anyone equate a right to have the

wrong repeated and benefit reaped thereunder.”

In Yadu Nandan Garg (supra), the contention before Supreme

Court was that one Anand Nursery was granted exemption while denying

similar benefit to the appellant. Rejecting the plea of discrimination,

Supreme Court, inter alia, observed as under:-

“It is true, for reasons best known to the authorities, that Anand

Nursery had the benefit of the exemption. The wrong exemption

under wrong action taken by the authorities will not cloth others

to get the same benefit nor can Article 14 be pressed into service

on the ground of invidious discrimination.”

We, therefore, find no substance in the plea of discrimination taken

by the petitioners.

19. Even if we assume that actual physical possession of the acquired

land was not taken by the Government on 31.03.1981, as is claimed by

the petitioners, we are of the view that since land in question was

acquired by them after issue of notification under Section 4 of Land

Acquisition Act, their case is not covered under the guidelines issued by

the Government on 02.12.1998 for de-notification of acquired land. We,

therefore, find no ground to direct either de-notification of land in question

from acquisition by issuing a notification under Section 48 of Land

Acquisition Act or reconsideration of the representations made by the

petitioners from time to time for de-notification of the aforesaid land.

CONCLUSION

Since De-notification Guidelines issued by the Government do not

permit de-notification of land in question, which the petitioners purchased

after issuance of notification under Section 4 of Land Acquisition Act,

we find no ground to direct the Government either to de-notify this land

or to re-consider the representations of the petitioners. The writ petition

being devoid of any merit is hereby dismissed. The interim orders passed

in favour of the petitioners during pendency of the writ petition are

vacated. The parties are left to bear their respective costs.


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681 682Prem Kumar v. State (Badar Durrez Ahmed, J.)


CRL. A.

PREM KUMAR ....APPELLANT.

VERSUS

STATE ....RESPONDENT

(BADAR DURREZ AHMED & VEENA BIRBAL, JJ.)

CRL.A. NO. : 119/1999 DATE OF DECISION: 09.11.2011

Juvenile Justice (Care and Protection of Children)

Act, 2000—Section 15, 16—Appellant/accused was

juvenile at the time of commission of murder, but

suffered imprisonment for over 10 years which is

three time the maximum period prescribed under the

Act—Not an appropriate case to send the appellant to

Juvenile Justice Board as the same would be grave


conviction—Conviction upheld, sentence set aside

and benefit of Sec. 19 of the Act, granted.

Keeping in mind the decisions of the Supreme Court in the

cases of Hari Ram v. State of Rajasthan & Anr (2009) 13

SCC 211 and Dharambir v. State (NCT of Delhi) & Anr

2010 (4) SCALE 316, the consequent benefit under the said

Act would have to be given to the appellant. In view of the

provisions of Section 15 and 16 of the said Act, the

appellant could not have been ‘detained’ for a period

extending beyond three years, whether in a special home or

in a place of safety. Since the appellant has already been

in custody for a period far in excess of the stipulated period

of three years, he cannot be kept under detention of any

kind any further. (Para 5)

[Gi Ka]

APPEARANCES:

FOR THE PETITIONER : Ms. Charu Verma, Advocate.

FOR THE RESPONDENT : Ms. Richa Kapoor, APP.

CASES REFERRED TO:

1. Dharambir vs. State (NCT of Delhi) & Anr 2010 (4)

SCALE 316.

2. Hari Ram vs. State of Rajasthan & Anr (2009) 13 SCC

211.

RESULT: Appeal Disposed of.

BADAR DURREZ AHMED, J. (ORAL)

1. This appeal is directed against the judgment dated 20.05.1998

passed by the learned Additional Sessions Judge, Delhi in sessions case

No. 123/1996 arising out of FIR No.261/1994 under Section 302 IPC

registered at P.S. Pahar Ganj. The appellant has been convicted for the

offence punishable under Section 302 IPC and by virtue of the order on

sentence dated 21.05.1998 passed by the learned Additional Sessions

Judge, he has been sentenced to undergo imprisonment for life and to

pay a fine of Rs. 1000/- and in default of payment of fine to further

undergo simple imprisonment for three months. The appeal is also directed

against the said order on sentence.

2. During the pendency of the present appeal, the appellant Prem

Kumar had moved an application being Crl.M.A. 119/1999 claiming that

he was a juvenile on the date of the incident i.e., 22.05.1994. Consequently,

the appellant prayed that he be treated as a juvenile and be dealt with

under the Juvenile Justice (Care and Protection of Children) Act, 2000

(hereinafter referred to as the said Act). While disposing of the said

application, a Division Bench of this Court, by virtue of its order dated

04.05.2011, directed the Additional Sessions Judge to conduct an inquiry

with regard to the age of the appellant and also directed that a report be

submitted. The report of the learned Additional Sessions Judge has been

received which is dated 01.10.2011. As per the said report/order, the

appellant has been found to be of the age of 17 years 3 months and 17

days on the date of the incident.

3. There is no contest with regard to this determination by the


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683 684Prem Kumar v. State (Badar Durrez Ahmed, J.)

learned Additional Sessions Judge. As such, the appellant would have to

be treated as a juvenile within the meaning of Section 2(k) of the said

Act.

4. We find that the appellant had already undergone incarceration

for about 10 years and 10 months when this court had granted him the

benefit of suspension of sentence and had directed his release on bail by

virtue of the order dated 26.05.2005.

5. Keeping in mind the decisions of the Supreme Court in the cases

of Hari Ram v. State of Rajasthan & Anr (2009) 13 SCC 211 and

Dharambir v. State (NCT of Delhi) & Anr 2010 (4) SCALE 316, the

consequent benefit under the said Act would have to be given to the

appellant. In view of the provisions of Section 15 and 16 of the said Act,

the appellant could not have been ‘detained’ for a period extending beyond

three years, whether in a special home or in a place of safety. Since the

appellant has already been in custody for a period far in excess of the

stipulated period of three years, he cannot be kept under detention of any

kind any further.

6. The learned counsel for the appellant states that the appellant is

not interested in challenging his conviction but is only seeking the benefit

with regard to the sentence under the said Act. In view of Section 20

of the said Act, while we do not disturb the finding of guilt returned by

the learned Additional Sessions Judge, the sentence awarded by the learned

Additional Sessions Judge is to be set aside. The maximum period of

detention under the said Act being only three years, whether in a special

home or any place of safety, no further order under Section 15 or 16

of the said Act can be passed in view of the fact that the appellant has

already been in custody for over 10 years and 10 months.

7. In view of the foregoing, while the conviction of the appellant

under Section 302 IPC is upheld, the sentence passed by the learned

Additional Sessions Judge is set aside. It is obvious that the appellant will

get the benefit of Section 19 of the said Act. The bail bonds are cancelled

and the surety stands discharged. The appeal stands disposed of

accordingly.


ITA

THE COMMISSIONER OF INCOME ....APPELLANT

TAX-II NEW DELHI

VERSUS

MODERATE LEASING & ....RESPONDENT

CAPITAL SERVICES LTD.

(A.K. SIKRI & M.L. MEHTA, JJ.)

ITA NO. : 137/2010 DATE OF DECISION: 18.11.2011

Income Tax Act, 1961—Section 260A—Assessee a

limited company engaged, inter-alia, in the business

of investment in shares—Assessee debited loss on

sale of shares amounting to Rs. 1,34,06,274/- as

business loss—Assessee submited, it was an

investment company and investing in shares of other

companies, was its main business—Any Profit and loss

on sale of shares accounted for business loss—AO

was of the view that even an investment company

could hold shares either as stock-in-trade or as an

investment—In which particular segment assessee

was holding particular shares would depend upon the

initial purchase as that would reflect the intention of

the Company to this effect—Assessing Officer rejected

the contention of the assessee, on the grounds

assessee has been consistenly showing these shares

as investment in the Balance sheet filed with the

returns of income—From the date of its purchase in

1997 till sold in 2004 there was no transaction of sale

of these shares—Order of Assessing Officer affirmed

by CIT(A)—Tribunal, however, allowed the appeal

treating the sale of shares as business income taking

into consideration first that sale of shares in earlier


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685 686 The Comm. of Income Tax-II New Delhi v. Moderate Leasing & Cap. Services Ltd. (A.K. Sikri, J.)

assessment year had been credited in revenue account

of the assessee and second revenue had accepted

this position in Assessment Year 2003-04—Held, as

per Memorandum / Articles of Association investment

in shares was one of the main objectives of the

Company—Shares in question were alway shown as

investment—Shares were treated as investment in

every year till there sale in the Blance Sheet—Assessee

was maintaining two portfolios, one was the investment

portfolio and the other was the business portfolio—

The shares in question were show in the investment

portfolio—Once these factors are taken into account

merely because in the previous year the sales

transaction was reflected in the Profit & Loss Account

and was not detected by the Assessing Officer, would

not be sufficient to upset the findings of the Assessing

Officer based on over all appreciation of facts—Appeal

allowed.

In the first instance, it may be noted that as per the

memorandum/articles of association, investment in shares is

one of the main objectives of the company. Then the shares

in question held by the assessee were always shown as

investment only. Even if the Assessing Officer has wrongly

stated the period of 8 years for holding these shares before

their sale, the fact remains that these shares remained with

the company for substantial period. From the inception, the

shares were treated as investment in every year till their

sale in the balance sheet. While showing it in the profit and

loss account, the remarks of the auditors become relevant

and could not be brushed aside so conveniently as has

been done by the Tribunal. Very important fact which is

glossed over by the Tribunal is that the respondent/assessee

is maintaining two separate portfolios. One portfolio is

investment portfolio where shares purchased are shown as

investment. Other is business portfolio where share

purchased are shown as stock-in-trade. Since the assessee

is dealing in the business of sale and purchase of shares as

well, in such a scenario when two portfolios are maintained

and shares in question are shown in investment portfolio,

that would be a very dominant factor disclosing the intention

of the assessee as far as shares in question are concerned.

When these factors are kept in mind, merely because in the

previous year the sale transaction was reflected in the profit

and loss account and that was not deducted by the Assessing

Officer, would not be a ground to upset the findings of the

Assessing Officer and the CIT (A) based on over all

appreciation of facts of the case in this year which is a

separate and distinct assessment year. (Para 9)

Important Issue Involved: In a case like this it is necessary

to examine the fact to find out as to how the shares from

the inception had been treated. Once the intention of the

assessee becomes clear in respect of such shares, a few

aberrations would be immaterial.

[La Ga]

APPEARANCES:

FOR THE PETITIONER : Mr. Sanjeev Sabharwal, Sr. Standing

Counsel.

FOR THE RESPONDENT : Mr. Salil Kapoor, Advocate with Mr.

Ankit Gupta, Advocate.

CASES REFERRED TO:

1. CIT vs. Dalmia Jain & Company Ltd. (1972) 83 ITR

438.

2. Patiala Biscuits Manufacturers Pvt. Ltd. vs. CIT (1971)

82 ITR 812.

3. Janki Ram Bahadur Ram vs. Commissioner of Income

Tax (1965) 57 ITR 21.


A.K. SIKRI, J.

1. This appeal was admitted on the following substantial question

of law:


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“Whether the findings of ITAT are perverse in holding that the

loss on sale of shares holding as investment in the books of

accounts was revenue loss and not capital loss?”

2. The respondent-assessee is a limited company and engaged in

the business of leasing, investment in shares and to act as Managers to

issue and offers, to give financial assistance in order and abroad, to act

administrator or manager of an investment, trust, of fund, to give guarantee

or other financial assistance for development of new enterprise, etc. The

assessee filed its return of income for the Assessment Year in question,

i.e., 2004-05 and the same was assessed under the provisions of Section

143(3) of the Income Tax Act (hereinafter referred to as ‘the Act’).

3. During the assessment proceedings, the Assessing Officer (AO)

noted from the Profit & Loss Account of the assessee that the assessee

had debited loss on sale of shares amounting to Rs. 1,34,06,274/- as

business loss. The assessee was asked vide order sheet entry dated

14.9.2005 to give the details of this loss and to explain why it should not

be treated as capital loss in view of the fact these shares have been

shown as investment in the balance sheet by the assessee company for

a number of years.

4. The assessee responded by submitting that it was an investment

company and had been investing in shares of other companies, which

was explained as its main business. Any profit and loss on sale of

business loss had been accounted for business loss and having claimed

in Profit & Loss account and in support thereof relied upon some

judgments. The AO, however, was not convinced with this explanation.

He was of the view that even an investment company could hold shares

either as stock-in-trade or as an investment. In which particular segment,

the assessee was holding particular shares would depend upon the initial

purchase, as that would reflect the intention of such a company. If it is

a case of stock-in-trade, the Profit & Loss arising from its transfer is

stated as business income or business loss and in case the shares are held

as investment, then the sale thereof may result in a short-term or a long-

term capital gains with indexation benefits.

Applying this principle, the assessee’s contention was considered

and rejected on the following grounds:-

(i) There is no bar in law for an investment company to have

shares as either stock-in-trade or as an investment. At the

time of initial purchase the character of expenditure is

determined by the intention of the assessee. The assessee

may choose at its option to treat to purchase as investment

or as stock in trade. The legal consequences of these

alternatives are different. In the case it is stock in trade,

the profit or loss arising from its transfer is treated as a

business income or a business profit or loss arising there

from has to be treated as a short term or a long term

capital gains with indexation benefits. In short, if the

contention of the assessee is accepted, the there cannot

be any income on account of capital gains in the case of

investment companies who purchase shares as investment.

(ii) In the present case, the intention of the assessee is manifest

and apparent from the treatment given to these purchases

right from F.Y. 1996-97. The assessee has been

consistently showing these shares as investments in the

balance sheets filed alongwith the returns of income. The

assessee cannot be allowed to change its stance after 8

years for the purpose of setting off of this loss against

business income. In fact and in law, this is precisely what

is prohibited in the provisions relating to set off of losses.

Apart from the reasons given above, the assessing officer pointed

out many circumstantial evidences which according to him went against

the assessee’s contention, and enumerated these circumstances as under:-

(i) In the balance sheet of the assessee, the assessee has

shown this 505900 equity shares of Rs. 10/- each fully

paid to M/s SBEC Sugar Ltd. as investments and not as

stock in trade n the current assets.

(ii) These shares were purchased on 27.01.1997 and are only

being sold for the first time in F.Y. 2003-04. n the

interregnum period from 1997 to 2004, there was no

transaction of sale of these shares.

(iii) The assessee company M/s Moderate Leasing and capital

Services Ltd. is a group company of Modi Group. It is

a known business practice of the promoters to make


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investments in public limited companies through group

investment companies. M/s SBEC Sugar Ltd. whose shares

have been sold is also one of the group companies of

Modi Group of Companies.

(iv) The memorandum and articles of association of the

company shows investment in shares as the main objects.

5. The assessee preferred the appeal against the aforesaid assessment

order passed by the Assessing Officer but was unsuccessful in the said

appeal as the CIT (A) affirmed the order of the Assessing Officer and

dismissed the appeal. However, on further appeal by the assessee to the

ITAT, the assessee has succeeded and the ITAT while allowing the

appeal has treated the gain from the sale of shares as income as business

income.

6. The reading of the impugned order of the Tribunal would reflect

that the Tribunal first discussed the legal position as stated by the Supreme

Court in the case of Janki Ram Bahadur Ram Vs. Commissioner of

Income Tax (1965) 57 ITR 21 and culled out the legal principle therefrom

by pointing out that such a question is a mixed question of fact and law.

If a transaction is related to the business, which is normally carried on

by the assessee, though not directly part of it, an intention to launch upon

an adventure in the nature of trade may readily be inferred. A similar

inference would arise where a commodity is purchased and sub-dividend

and sold. Such an intention may also be inferred in the case of a commercial

commodity. But a transaction of purchase of land, without anything

more, may not lead to the inference of embarking upon the adventure in

the nature of trade. Therefore, what has to be looked into is the intention

at the time of purchases, the manner n which the shares have been dealt

with and how they were treated in past and future. The Tribunal thereafter

discussed the ratio of the Supreme Court judgment in the case of Patiala

Biscuits Manufacturers Pvt. Ltd. Vs. CIT (1971) 82 ITR 812 and CIT

Vs. Dalmia Jain & Company Ltd. (1972) 83 ITR 438. In the former

case, the transaction was held on the capital account whereas in the later

case, the loss on the sale of shares was treated as trading loss meaning

thereby transaction was held as business transaction. After discussing

these two cases, the Tribunal concluded that the instant case was more

proximate with the decision of the Supreme Court in Dalmia Jain (supra)

and the case of Patiala Biscuits (supra) were distinguishable. The

conclusive part of discussion runs as follows:-

“having considered the facts of the case and rival decided cases

submitted by the both parties, we are of the view that the

classification of the shares in the books of the assessee may be

one of the factors but not the conclusive factor as the question

has to be considered in totality of the circumstances, as held in

the case of Janki Ram Bahadur Ram (supra). The decision of

the case of Patiala Biscuits Manufacturers Pvt. Ltd., was in

respect of preference shares, where there could not have been

any possibility of increase or decrease in value because of fixed

rate of dividend. However, the assessee held equity shares and

incurred considerable loss in this year as well as in the immediately

preceding year. Thus, it bore the risk of loss also, which makes

the transaction to be in the nature of a trading transaction, especially

in view of its main object of dealing in shares. All through, the

losses were shown as business losses and this stand was accepted

by the revenue in assessment year 2003-04. Therefore, the facts

come to close the facts I the case of Dalmia Jain & Company

Ltd. (supra), in which the transaction was held to be a trading

transaction. Insofar as the remarks made by the auditors are

concerned, the case of the learned counsel was that they were

only in respect of unsold shares. However, to our mind, such

remarks are also not of essence when deciding the issue. If any

case, the remarks do not represent true state of affairs as in the

assessment year 2008-09, surplus on the sale of these shares has

been credited in the books of revenue surplus. Thus, the real

question is to find out the true nature of the transaction, which

is clearly discernible from the treatment given by the assessee to

the sale transaction in the profit and loss accounts of three

years. The revenue has already accepted this position in

assessment year 2003-04 and no reason is shown to digress

from the position.”

7. To put in nutshell, as per the ITAT the classification of shares

as investment in the profit and loss account is not the conclusive factor

though it may be one of the relevant factors. Likewise, the Tribunal has

not given much credence to the remarks by the auditors in the profit and

loss account on the premise that these remarks do not represent true


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state of affairs. The two factors which had weighed with the ITAT in

favour of the assessee are:-

(i) The sale of shares in earlier assessment year had been

credited in the Revenue account by the assessee.

(ii) The revenue had accepted this position in the assessment

year 2003-04 and no reason was shown to digress from

the position.

8. We are of the view that the ITAT has taken a very myopic view

of the entire matter. Only because some income from the shares sold in

the assessment year 2003-04 were treated as business income is taken

to be the conclusive factor ignoring and side tracking all other important

factors which would outweigh the aforesaid reason give by the Tribunal.

9. In the first instance, it may be noted that as per the memorandum/

articles of association, investment in shares is one of the main objectives

of the company. Then the shares in question held by the assessee were

always shown as investment only. Even if the Assessing Officer has

wrongly stated the period of 8 years for holding these shares before their

sale, the fact remains that these shares remained with the company for

substantial period. From the inception, the shares were treated as investment

in every year till their sale in the balance sheet. While showing it in the

profit and loss account, the remarks of the auditors become relevant and

could not be brushed aside so conveniently as has been done by the

Tribunal. Very important fact which is glossed over by the Tribunal is

that the respondent/assessee is maintaining two separate portfolios. One

portfolio is investment portfolio where shares purchased are shown as

investment. Other is business portfolio where share purchased are shown

as stock-in-trade. Since the assessee is dealing in the business of sale and

purchase of shares as well, in such a scenario when two portfolios are

maintained and shares in question are shown in investment portfolio, that

would be a very dominant factor disclosing the intention of the assessee

as far as shares in question are concerned. When these factors are kept

in mind, merely because in the previous year the sale transaction was

reflected in the profit and loss account and that was not deducted by the

Assessing Officer, would not be a ground to upset the findings of the

Assessing Officer and the CIT (A) based on over all appreciation of facts

of the case in this year which is a separate and distinct assessment year.

10. The facts of this case resemble more with the facts of the case

in Patiala Biscuits (supra). In that case the assessee was carrying in the

business of manufacturing biscuits. It purchased preference shares of

another company at the time of the expansion of that company. Both the

companies belonged to one group, namely, the Dalmia Group. The assessee

sold the shares leading to a loss of Rs. 4,80,985/- This was the only

transaction fo the assessee in dealing in shares. The Tribunal came to the

conclusion that the shares were preference shares carrying a fixed rate

of dividend, which could not be appreciate in value. The purchase was

not made in the open market. The two companies were inter-linked with

each other. And finally, this was a solitary transaction of dealing in

shares by the assessee company. Therefore, it was held that the transaction

was on the capital account. The Court held that the aforesaid finding of

the Tribunal was not vitiated in any manner. The AO had also relied on

the decision of Supreme Court in the cast of CIT Vs. Dalmia Jain

(supra). The facts of that case were that the assessee incurred a loss on

sale of shares. It was established that the assessee was dealing in shares.

In past, such losses were deducted while computing the total income. On

these facts, the Tribunal as well as the High Court came to the conclusion

that it was a trading loss. The Supreme Court pointed out that the

question is primarily a question of fact. It was not the case of the

department that in arriving at its decision, the Tribunal had taken into

consideration any irrelevant consideration or failed to take into account

any relevant consideration. Thus, it was held that there was no room for

any interference by the Court.

11. Since the Tribunal ignored the very material and relevant aspects

resulting into perversity of its findings, we accordingly answer the question

in the affirmative i.e. in favour of the Revenue and against the assessee

holding that the shares in question were held as investments and loss on

the sale thereof was capital loss and not Revenue loss. The impugned

order of the Tribunal is set aside. This appeal is allowed.

12. No order as to costs.


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693 694Prem Kumar v. State (Mukta Gupta, J.)


CRL. REV. P.

PREM KUMAR ....PETITIONER

VERSUS


(MUKTA GUPTA, J.)

CRL.REV.P. NO. : 370/2009 DATE OF DECISION: 18.11.2011

Indian Penal Code, 1860—Section 379, 34—Code of

Criminal Procedure, 1973—Section—313—Petitioner

convicted under Section 379/34 IPC for committing

theft of a pipe and a copper plate from solar system

installed at terrace of barrack No. 5, New Police Lines,

Kingsway Camp—Petitioner challenged his conviction

in Court of learned Additional Sessions Judge which

was upheld but he was ordered to be released on

probation—Aggrieved by said judgment, petitioner

preferred revision urging, during trial he was not

represented through legal aid counsel which caused

him great prejudice—Also, testimony of prosecution

witnesses were inconsistent and contrary which did

not inspire confidence—Held :- The Courts employ the

concept of prejudice to aid in remedying the injustice—

Not examining accused persons strictly in compliance

to Section 313 Cr.P.C. is grave—The opportunity

granted under Section 313 Cr.P.C. must be real and

non illusionary—Questions must be so framed as to

give to accused clear notice of cricumstances relied

upon by prosecution, and an opportunity to render

such explanation as he can of that circumstance—

Each question must be so framed that accused can

understand it and appreciate what use the prosecution

desires to make of the same agnist him—Accused not

examined strictly in compliance of S.313 and was not

given opportunity to cross examine witnesses—

Material prejudice caused to occused—Acquited.

The linchpin of Section 313 Cr.PC is the opportunity to

‘explain any circumstances appearing in the evidence against

him’. This means that every circumstance from which the

Court would draw the inference of guilt against the accused

has to be put to the accused. It is the duty of the Trial Judge

to question the accused properly and fairly, bringing home

to the mind of the accused, in simple and clear language,

the exact case he has to meet and each material point that

is sought to be used against him and of affording him a

chance to explain it if he can and so desires. (Para 8)

Important Issue Involved: The opportunity granted under

Section 313 P.C. must be real and non illusionary—Questions

must be so farmed as to give to accused clear notice of

circumstances relied by prosecution, and an opportunity to

render such explanation as he can of that circumstance—

Each question must be so framed that accused can understand

it and appreciate what use the prosecution desires to make

of the same against him.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. N. Safaya, Advocate.

FOR THE RESPONDENT : Mr. Mukesh Gupta, APP with ASI

Ram Gopal, PS Mukherjee Nager.

RESULT: Petition allowed.

MUKTA GUPTA, J. (ORAL)

1. By the present petition the Petitioner seeks setting aside of the

order dated 18th March, 2009 passed by Learned Additional Sessions

Judge upholding the conviction of the petitioner under section 379/34

IPC and acquitting him for the offence charged.


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2. Learned counsel for the Petitioner states that the conviction of

the Petitioner under section 379/34 IPC is erroneous and no case under

the section is made out against the Petitioner as the essential requirements

of the section are not fulfilled in the present case. There are inconsistencies

and contradictions in the testimonies of the witnesses and the same does

not inspire confidence. During the entire trial the petitioner was either

unrepresented or was represented through the legal aid counsel which

has caused grave prejudice to him. Hence the Petitioner cannot be convicted

for the said offence and the impugned order is liable to be set aside.

3. Per contra learned APP states that the impugned judgment suffers

from no illegality, the Petitioner has already been released on probation

by the learned Additional Sessions Judge. Thus the present revision petition

is liable to be dismissed.

4. Briefly the case of the prosecution is that the Petitioner along

with co-accused Jawahar Singh was seen committing theft of a pipe and

copper plate from the solar system installed at the terrace of barrack No.

5, New Police Lines, Kingsway Camp. Constable Manmohan Singh who

resides on the first floor of the said barrack was on reserve duty on 27th

August, 2000. As per the FIR Constable Manmohan Singh went to the

terrace for morning walk at about 5.00 A.M. and saw the two accused

persons who had already removed the pipe and the copper plate and were

putting the same into a gunny bag. He apprehended them. Vide DD no.

38A the information was received at PS Mukherjee Nagar at about 5.45

AM. This DD was marked to HC Pushpendra who seized the recovered

articles and arrested both the accused. After completion of investigation

charge under Section 379/34 IPC was framed against both the accused

persons. Learned Metropolitan Magistrate convicted the accused persons

and sentenced them to undergo Rigorous Imprisonment for one year for

offences punishable under Section 379/34 IPC. The Petitioner filed an

appeal against this order. Vide order dated 18th March, 2009 Learned

Additional Sessions Judge upheld the conviction of the Petitioner and

released him on probation. This order of the Learned Additional Sessions

Judge upholding his conviction is impugned in the present petition.

5. It would be relevant to note that the charge under Section 379/

34 IPC was framed against the Petitioner on 14th November, 2000 and

the matter was listed for prosecution evidence on 28th November, 2000.

On this date PW1 and PW2 were examined by the Learned Trial Court

and were discharged, PW1 was not cross examined whereas PW2 was

cross examined by a legal aid counsel. Thereafter on 17th January, 2001

PW3 was examined and discharged. No counsel for the petitioner was

present on the said date. PW4 was examined and discharged on 31st

January, 2001. On 14th February, 2001 the petitioner was once again

unrepresented by any counsel, when PW5 was examined and discharged.

Learned Metropolitan Magistrate noted that all the prosecution witnesses

stood examined and therefore closed the prosecution evidence. The matter

was thereafter listed for recording of statement of accused. On 12th

March, 2001, the statement of accused persons was recorded. The matter

was then listed for arguments on 21st March, 2001, when an application

under Section 311 Cr.P.C was filed by the counsel for accused/ Petitioner

for recalling of PW1 and PW2 as their cross-examination could not be

done on 28th November, 2000. Learned Trial Court vide order dated 21st

March, 2001 allowed the application and the matter was listed for cross

examination of all witnesses on 18th April, 2001. On the said date no

witness was present for cross examination. Thereafter on several occasions

the witnesses were summoned but none was present for cross-examination.

On 19th September, 2002 PW 2 was cross examined and discharged.

None of the other witnesses have been cross examined and the order

sheets do not indicate why the remaining witnesses were not available for

cross-examination. Though it is noted that on 20th February, 2003 fresh

statement of accused has been recorded but there is no other statement

of accused available on record other than the one recorded on 12th

March, 2001.Thereafter on 30th April, 2008 Learned trial court passed

the judgment convicting the petitioner.

6. A perusal of the statements of the prosecution witnesses and the

statement of accused shows that the manner in which the statements

were recorded was most unsatisfactory and perfunctory. During the

entire trial the petitioner is either not represented by a lawyer or has been

represented by some legal aid counsel who has not cross examined the

witnesses. Also when the witnesses were recalled for cross examination

only one appeared and there is nothing on record to show as to what

steps were taken by the court to ensure the presence of other witnesses.

The entire trial conducted by the learned Trial Judge seems to be an idle

formality.


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7. Before proceeding further it would be relevant to reproduce the

statement of accused recorded by the trial court:

“Statement of accused Prem Kumar s/o Man Bahadur:

The memorandum of substance of prosecution evidence is put

to you accused that on 27/8/2000 you accused were seen by Ct.

Manmohan on hearing the noise of khat khat on the roof of

barrack no. 5 and when he had gone to take a morning walk and

say both of you accused while stealing the brass chadar and rod

from Solar System installed on the roof of the said barrack and

he also saw you accused putting the same in the gunny bag

while you were in the process of taking away the said stolen

property while you accused Jawahar Singh was having one gunny

bag in your hand whereas the other accused Prem was receiving

small plastic bag containing two screw drivers, one plas, two

aris and one key and one reti and in the gunny bag there were

chadar of brass and rod made of brass weighing about 10 kgs.

On alarm being raised the residents of the barrack also came

there. Police was informed. Statement of complainant Ex.PW-1/

A was recorded on the basis of which FIR Ex. PW-4/A was

recorded by ASI Renu on ruka sent by HC Pushpinder through

Ct. Avadh Bihari. The sanction by the competent authority for

installation of the solar system is Ex.PW3/A. Chadar and pipe

made of brass were taken into possession vide Ex. PW-1/B. Ari

and screw drivers were taken into possession vide Ex.PW-1/C.

Jamatalashi of the accused are Ex.PW-1/D and Ex.PW-1/E

respectively and the said articles are Ex.PW-1 to P-7. IO prepared

site plan Ex.PW5/B at the instance o the complainant. IO also

made the endorsement on the statement of the complainant Ex.PW-

1/A and sent the same through Ct. Avadh Bihari for the registration

of the case to which accused stated that case is false. PWs have

deposed falsely. I do not want to lead defence evidence.

8. The manner in which the statement of accused is recorded is

perverse as it cannot made out whether any incriminating circumstance

has been put to the accused and what answer the accused has given for

the questions. The linchpin of Section 313 Cr.PC is the opportunity to

‘explain any circumstances appearing in the evidence against him’. This

means that every circumstance from which the Court would draw the

inference of guilt against the accused has to be put to the accused. It is

the duty of the Trial Judge to question the accused properly and fairly,

bringing home to the mind of the accused, in simple and clear language,

the exact case he has to meet and each material point that is sought to

be used against him and of affording him a chance to explain it if he can

and so desires.

9. The opportunity granted under Section 313 Cr.P.C. must be real

and not illusionary. Questions must be so framed as to give to the

accused clear notice of the circumstances relied upon by the prosecution,

and an opportunity to render such explanation as he can of that

circumstance. Each question must be so farmed that the accused can

understand it and appreciate what use the prosecution desires to make of

the same against him.

10. The Courts employ the concept of prejudice to aid in remedying

the injustice. The prejudice in the present case is apparent and grave. The

manner in which the trial is conducted in the present case is not a mere

irregularity but illegality and the error on part of the trial Judge in not

examining the accused persons strictly in compliance to Section 313

Cr.P.C. and not giving the right to cross-examine the witnesses is grave

which has resulted in causing material prejudice to the petitioner.

11. In view of the facts that the Petitioner has already faced the

ordeal of trial, appeal and the present revision for the last 11 years, I am

of the opinion that no useful purpose would be served in remanding the

matter back for fresh trial. Even on consideration of facts on record the

Learned Additional Sessions Judge thought it fit to release the Petitioner

on probation. Consequently, the judgments dated 18th March, 2009 by

the Learned Additional Sessions Judge and 30th April, 2008 of the Learned

Metropolitan Magistrate are set aside and the Petitioner is acquitted of the

charges framed.

12. Petition stands disposed of.


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699 700 The Comm. of Income Tax Delhi IV v. I.P. India Pvt. Ltd. (R.V. Easwar, J.)


ITA

THE COMMISSIONER OF INCOME ....APPELLANT

TAX DELHI IV

VERSUS

I.P. INDIA PVT. LTD. ....RESPONDENT

(SANJIV KHANNA & R.V. EASWAR, JJ.)

ITA. NO. : 1192/2011 DATE OF DECISION: 21.11.2011

Income Tax Act, 1961—Section 260A—Assessee a

private limited company—Assessing Offiicer while

computing assessment u/s 143(3) made observation

that assessee received share application money in

cash from three private limited company in violation

of section 269SS and therefore, should be treated as

deposits and as a consequence of that liable for

penalty under Section 271D—Plea raised by the

assessee that the share application monies received

by the Company pending allotment of shares do not

amount to loan or deposit, accepted by CIT(A) and

Tribunal—Appeal preferred by Revenue—Held, there

is a distinction between loan and the deposit—In case

of loan ordinarily the duty of the debtor is to seek out

the creditor and to repay the money—A loan grants

temporary use of money or temporary accommodation,

whereas in case of deposits it is generally the duty of

the depositor to go to the bank or the depositee and

make a demand for it and the essence of the deposit

is that there must be a liability to return it the party by

whom the deposit was made on fulfillment of certain

conditions—Receipt of share of application monies

from the three private limited companies for allotment

of shares in the assessee company cannot be treated

as receipt of loan or deposit—Appeal declined to be

admitted.

On a careful consideration of the matter, we find that the AO

has relied on the judgment of the Jharkhand High Court

(supra) and referred the issue of levying penalty to the

Additional CIT. He did not examine whether the share

application monies can be treated as “loan” or “deposit”

within the meaning of Section 269SS. The Additional CIT

has merely endorsed the view of the AO in passing the

penalty order. The CIT(A) has found as a fact that the

shares were subsequently allotted to the applicant-companies

as shown by the form filed before the Registrar of Companies.

Neither the AO nor the Additional CIT has taken the trouble

to examine this aspect while imposing the penalty. They

have merely relied on the judgment of the Jharkhand High

Court (supra). The reliance on this judgment appears to us

to be misplaced. In Baidya Nath Plastic Industries (P)

Ltd. and Ors vs K.L. Anand (1998) 230 ITR 522, a learned

Single Judge of this court pointed out that the distinction

between a loan and a deposit is that in the case of the

former it is ordinarily the duty of the debtor to seek out the

creditor and to repay the money according to the agreement

while in the case of a deposit it is generally the duty of the

depositor to go to the banker or to the depositee, as the

case may be, and make a demand for it. This judgment was

approvingly cited by a Division Bench of this court in

Director of Income Tax (Exemption) vs ACME

Educational Society (2010) 326 ITR 146 (Del). In this

decision, it was held that a loan grants temporary use of

money, or temporary accommodation, and that the essence

of a deposit is that there must be a liability to return it to the

party by whom or on whose behalf it has been made, on

fulfillment of certain conditions. If these tests are applied to

the facts of the case before us, it may be seen that the

receipt of share application monies from the three private

limited companies for allotment of shares in the assessee-

company cannot be treated as receipt of loan or deposit. In

any case, the Tribunal has rightly noticed the cleavage of


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judicial opinion on the point and held that in that situation

there was reasonable cause u/S.273B, applying the judgment

of the Supreme Court in Vegetable Products (supra).

(Para 8)

Important Issue Involved: The receipt of share application

money cannot be treated as receipt of loan or deposit and,

therefore, not covered under Section 269 SS of the Income

Tax Act.

[La Ga]

APPEARANCES:

FOR THE PETITIONER : Mr. Sanjeev Sabharwal, Advocate.

FOR THE RESPONDENT : Mr. S. Krishnan, Advocate.

CASES REFERRED TO:

1. Director of Income Tax (Exemption) vs. ACME

Educational Society (2010) 326 ITR 146 (Del).

2. Commissioner of Income Tax vs. Rugmini Ram Ragav

Spinners (P) Ltd. (2008) 304 ITR 417.

3. Baidya Nath Plastic Industries (P) Ltd. and Ors. vs. K.L.

Anand (1998) 230 ITR 522.

4. CIT vs. Vegetable Products Ltd. (1973) 88 ITR 192 (SC).

RESULT: Appeal Dismissed.

R.V. EASWAR, J.

1. This is an appeal filed by the Revenue under Section 260A of the

Income Tax Act (Act, for short) against the order dated 31st March,

2011 of the Income Tax Appellate Tribunal (Tribunal, for short) in ITA

226/Del./2011 relating to the assessment year 2005-06. The following

questions of law, stated to be substantial questions of law have been

raised in the appeal :

“2.1 Whether learned ITAT/CIT(A) erred in deleting the penalty

of Rs.18,00,000/- imposed by the Assessing officer under Section

271D of the Income Tax Act, 1961?

2.2 Whether ITAT was correct in law in holding that the share

application money received in cash is not violation of section

269SS attracting penalty under section 271D of the Income Tax

Act, 1961?

2.3 Whether the decision of the Hon’ble Jharkhand High Court

in the case of M/s Bhalotia Engineering Works Pvt. Ltd. reported

at 275 ITR 399 is not applicable in the present case?

2. The respondent assessee is a private limited company. While

completing the assessment under Section 143(3) of the Act, the Assessing

Officer observed that the assessee received share application monies in

cash from three private limited companies as follows :

Sl. Name of the person from Share Application Money

No. whom Share Application received in “Cash” (in Rs.)

Money received

1. M/s Shekhawat Vanijya Vikas

Pvt. Ltd. 6,00,000/-

2. Udaipuria Commodities 7,00,000/-

Pvt. Ltd.

3. Veena Merchants Pvt. Ltd. 5,00,000/-

3. On the ground that the provisions of Section 269SS of the Act

are attracted to the receipt of the above monies in cash, the Assessing

Officer was of the view that the assessee was liable to be proceeded

against for levy of penalty under Section 271D. He referred to the judgment

of the High Court of Jharkhand in M/s Bhalotia Engineering Works

Pvt. Ltd. (2005) 275 ITR 399 where it was held that receipt of share

application monies in cash, in violation of Section 269SS of the Act

should be treated as “deposits” with the consequence that the assessee

would be liable for penalty under Section 271D. In this view of the

matter, he referred the matter to the Additional Commissioner of Income

Tax, Range 11, New Delhi, who was the appropriate authority to levy

the penalty. Before the Additional Commissioner of Income Tax, the

assessee submitted a written reply dated 1st August, 2008 and contended

that there was no violation of the provisions of Section 269SS as it had


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not accepted any loan or deposit in cash. It was claimed that the receipt

of share application monies in cash did not amount to acceptance of loan

or deposit by the company. These submissions were, however, rejected

by the Additional Commissioner of Income Tax, who by a brief order

dated 28th August, 2008 imposed the penalty of Rs.18,00,000/- under

Section 271D.

4. The assessee filed an appeal before the CIT(A) repeating the

arguments advanced before the Additional Commissioner of Income Tax.

In addition, the assessee relied on the judgment of the Madras High Court

in Commissioner of Income Tax Vs. Rugmini Ram Ragav Spinners

(P) Ltd. (2008) 304 ITR 417 where it was held that the money in cash

by a company towards allotment of shares, was neither a loan nor a

deposit. The CIT(Appeals) considered the submissions of the assessee in

detail and held that there was no violation of Section 269SS since the

share application monies received by the assessee company would not

amount either to a loan or a deposit within a meaning of Section 269SS.

He further noted that the shares have in fact been subsequently allotted

to the three companies, who advanced the monies to the assessee. In this

view of the matter he cancelled the penalty and allowed the assessee’s

appeal.

5. The Revenue filed an appeal before the Tribunal. The Tribunal

in para 6 of its order noted that there was a cleavage of judicial opinion

on the question whether the share application monies could be treated as

a deposit or loan within the meaning of Section 269SS as could be seen

from the judgments of the Jharkhand and Madras High Court (supra)

and in view of the divergence of judicial opinion, the assessee’s plea to

the effect that receipt of monies in cash against allotment of shares

cannot termed as loans or deposits would be sufficient to drop the

penalty. In this behalf the Tribunal relied on the judgment of the Supreme

Court in CIT vs. Vegetable Products Ltd (1973) 88 ITR 192 (SC) in

which it was held that if the Court finds that a taxing provision or penalty

provision is ambiguous or can give rise to more than one meaning, then

it should adopt that meaning which favours the assessee. Relying on this

judgment of the Supreme Court, the Tribunal held that since there was

more than one view on the applicability of Section 269SS to monies

received as share application monies, the CIT(Appeals) had rightly cancelled

the penalty. The appeal filed by the Revenue was thus dismissed.

6. The revenue has raised the questions of law extracted above.

The facts are not in dispute. On these facts, the question is whether any

substantial question of law arises from the order of the Tribunal cancelling

the penalty.

7. Section 269SS prohibits any person from accepting a loan or

deposit in cash exceeding Rs.20,000 in the aggregate in a year from a

third person. If there is any violation, the person receiving the loan or

deposit will be liable to penalty u/S.271D in an amount equal to the

amount of the loan or deposit. A loan or deposit is defined in the Explanation

below Sec.269SS as a “loan or deposit of money”. The assessee’s

contention, accepted both by the CIT(A) and the Tribunal, is that share

application monies received by a company, pending allotment of shares,

do not amount to loan or deposit.

8. On a careful consideration of the matter, we find that the AO has

relied on the judgment of the Jharkhand High Court (supra) and referred

the issue of levying penalty to the Additional CIT. He did not examine

whether the share application monies can be treated as “loan” or “deposit”

within the meaning of Section 269SS. The Additional CIT has merely

endorsed the view of the AO in passing the penalty order. The CIT(A)

has found as a fact that the shares were subsequently allotted to the

applicant-companies as shown by the form filed before the Registrar of

Companies. Neither the AO nor the Additional CIT has taken the trouble

to examine this aspect while imposing the penalty. They have merely

relied on the judgment of the Jharkhand High Court (supra). The reliance

on this judgment appears to us to be misplaced. In Baidya Nath Plastic

Industries (P) Ltd. and Ors vs K.L. Anand (1998) 230 ITR 522, a

learned Single Judge of this court pointed out that the distinction between

a loan and a deposit is that in the case of the former it is ordinarily the

duty of the debtor to seek out the creditor and to repay the money

according to the agreement while in the case of a deposit it is generally

the duty of the depositor to go to the banker or to the depositee, as the

case may be, and make a demand for it. This judgment was approvingly

cited by a Division Bench of this court in Director of Income Tax

(Exemption) vs ACME Educational Society (2010) 326 ITR 146 (Del).

In this decision, it was held that a loan grants temporary use of money,

or temporary accommodation, and that the essence of a deposit is that

there must be a liability to return it to the party by whom or on whose


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Mohan Singh v. Union of India & Ors. (Rajiv Sahai Endlaw, J.)

undertaking to provide access to the said area for

maintenance, cleaning etc.—Held, location of the area

shows that it was a common area within the meaning

of Delhi Apartments Ownership Act, 1986—Though this

was not the reason for the cancellation of the license

but the Court in exercise of powers under Article 226

of the Constitution of India, cannot grant relief contrary

to law—It being the common area Court can not confer

an exclusive right in respect of the said area to the

Petitioner / Appellant.

As far as the latter of the aforesaid submissions is concerned,

though undoubtedly the Division Bench towards the end of

the order dated 21st September, 2007 had clarified that the

observations would not come in the way of a decision

pursuant to the show cause notice but the fact remains that

what was observed therein remains relevant in the decision

pursuant to the show cause notice also. The reply by the

appellant to the show cause notice does not contain anything

for what was observed earlier to be not relevant today. We

have examined the sketch plan of the market. The location

of the subject quadrangle is undoubtedly as of a common

area within the meaning of the Delhi Apartments Ownership

Act, 1986. The senior counsel for the appellant has of

course contended that the licence has not been revoked for

the said reason and we, not to be guided by the reasons

which did not prevail with the respondents for revoking the

licence. However this Court while exercising powers under

Article 226 of the Constitution of India cannot give any

direction or relief contrary to the law. Once the nature of the

said quadrangle is found to be as of a common area, over

which all the occupants/users of the market have a right,

then this Court cannot confer any exclusive right in the

appellant who is occupant of the one of but several shops

in the market and vesting of which rights would definitely

have an impact on the rights of the other occupants thereof.

We are rather surprised at the grant of exclusive licence by

the respondents with respect to the said common area.

(Para 6)

behalf it has been made, on fulfillment of certain conditions. If these tests

are applied to the facts of the case before us, it may be seen that the

receipt of share application monies from the three private limited companies

for allotment of shares in the assessee-company cannot be treated as

receipt of loan or deposit. In any case, the Tribunal has rightly noticed

the cleavage of judicial opinion on the point and held that in that situation

there was reasonable cause u/S.273B, applying the judgment of the

Supreme Court in Vegetable Products (supra).

9. We are accordingly of the view that no substantial question of

law arises from the order of the Tribunal. We decline to admit the appeal.

The same is dismissed with no order as to costs.


LPA

SHRI MOHAN SINGH ....APPELLANT

VERSUS

UNION OF INDIA & ORS. ....RESPONDENTS

(A.K. SIKRI, ACTING CJ. & RAJIV SAHAI ENDLAW, J.)

LPA NO. : 967/2011 DATE OF DECISION: 22.11.2011

Constitution of India, 1950—Article 226—Petitioner/

Appellant Licensee of a shop and also of an area

behind the shop containing all drainage including

gully traps and manholes with underground drainage

pipeline for waste water to be taken to municipal

drains—License cancelled in respect of the said area

behind the shop because of the Petitioner/Appellant

not providing access through his shop to the said

area as per the term of the license—During

submissions it was urged on behalf of the petitioner

/ Appellant that Petitioner was willing to give

705 706


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Though in view of the above, the grounds for which the

licence was revoked are irrelevant but we may observe that

considering common nature of the said quadrangle and the

implicit need for 24 hour access thereto to all the occupants

of the market, grant of exclusive licence with respect thereto

to one or two occupants only is bound to interfere with the

needs of others. This Court would not grant such an order

which cannot be enforced and/or which may cause prejudice

to others. The Court is not in a position to supervise the

uninterrupted access by the appellant as is sought to be

undertaken before this Court and imposing any such

condition is likely to lead to multiplicity of litigation.

(Para 7)

Important Issue Involved: In exercise of powers under

Article 226 of the Constitution Court cannot grant relief

contrary to law though its violation may not have been the

reason for the Petitioner to approach the Court for relief.

[La Ga]

APPEARANCES:

FOR THE APPELLANT : Mr. Neeraj Kishan Kaul, Sr.

Advocate with Mr. Rajendra Singhvi,

Mr. K.K.L Gautam & Mr. Anil A.

Batra, Advocate.

FOR THE RESPONDENTS : Mr. R.V. Sinha & Mr. A.S Singh,

Advocate.

RESULT: Appeal Dismissed.


1. The appellant had filed W.P.(C) No.4179/2007 impugning the

order dated 11th May, 2007 of the Director of Estates, Govt. of India

revoking the license earlier granted to the appellant in respect of Quadrangle

No. IV, Mohan Singh Market, INA, New Delhi. The learned Single Judge

has vide impugned judgment dated 10th August, 2011 dismissed the writ

petition holding:-

i. That there was no illegality, irrationality or arbitrariness in

the decision of revocation of license;

ii. That the earlier W.P.(C) No. 17550/2004 preferred by the

appellant impugning the show cause notice issued before

the order of cancellation had been dismissed and the appeal

being LPA No.393/2006 preferred by the appellant

thereagainst had also been dismissed vide order dated 21st

September, 2007 and reasons given therein were also

applicable to the challenge to the order ultimately passed

of revocation of licence;

iii. That the petitioner as a licencee in any case had no right

to the Quadrangle No. IV and the licence by its very

nature was revocable.

Aggrieved therefrom the present appeal has been preferred.

2. We may notice that Mohan Singh Market is in the shape of a

quadrangle with the shops opening in covered verandah all around the

market and with their rear towards a “small central quadrangle”. The

appellant is a licencee of shop No.207 in the said market. He/his father

were given licence with respect to the “small central quadrangle” known

as Quadrangle No. IV behind their shop and which licence of the quadrangle

alone has now been cancelled. The lincence with respect to the shop

No.207 subsists. It is not in dispute that the said quadrangle contains all

drainage including gully traps and manholes with underground drainage

pipelines from where the waste water is taken out to the Municipal

drains. The order dated 21st September, 2007 dismissing the LPA No.393/

2006 (earlier preferred by the appellant challenging the show cause notice

and seeking a direction for grant of ownership rights in the said quadrangle)

records that the quadrangle was in fact a service area for all the shops

in the market and if the ownership rights with respect thereto are given

to one person or if the same is blocked from all sides, the quadrangle

area will not be available for maintenance when it was a common area

for circulation/ventilation.

3. The licence earlier granted to the appellant of the said quadrangle

has been cancelled on the ground that though the appellant as a term of

the licence was required to provide access through his shop to the said

Mohan Singh v. Union of India & Ors. (Rajiv Sahai Endlaw, J.) 707 708


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709 710

quadrangle for carrying out of the common maintenance but had blocked

the entire area of quadrangle in such as way that the maintenance and

cleaning work thereof could not be carried out.

4. The senior counsel for the appellant has vehemently contended

that the ground for revocation of the licence is erroneous; the appellant

never deprived access to the said quadrangle for maintenance, cleaning

etc. and has rather repeatedly offered and undertaken that he is willing

therefor. It is urged that the appellant even now is willing to give an

undertaking in this regard as may satisfy this Court and/or the respondents.

It is contended that the learned Single Judge has not noticed the said

aspect and has wrongfully dismissed the writ petition.

5. The senior counsel for the appellant with respect to the

observations aforesaid in the order dated 21st September, 2007 in LPA

No.393/2006 earlier preferred by the appellant contends that the said LPA

was concerned with the show cause notice then issued and any

observations therein would have no relevance to the final order of

cancellation. It is further contended that the appellant was then, also

claiming ownership rights with respect to the said quadrangle in accordance

with the policy of the respondents but is now not claiming any ownership

rights and is confining the claim only to the continuance of the licence

and which has been revoked for wrongful reasons. It is further contended

that the Division Bench had categorically observed in the order dated 21st

September, 2007 that the observations therein would not influence final

order passed pursuant to the show cause notice then under challenge.

6. As far as the latter of the aforesaid submissions is concerned,

though undoubtedly the Division Bench towards the end of the order

dated 21st September, 2007 had clarified that the observations would not

come in the way of a decision pursuant to the show cause notice but the

fact remains that what was observed therein remains relevant in the

decision pursuant to the show cause notice also. The reply by the appellant

to the show cause notice does not contain anything for what was observed

earlier to be not relevant today. We have examined the sketch plan of the

market. The location of the subject quadrangle is undoubtedly as of a

common area within the meaning of the Delhi Apartments Ownership

Act, 1986. The senior counsel for the appellant has of course contended

that the licence has not been revoked for the said reason and we, not to

be guided by the reasons which did not prevail with the respondents for

revoking the licence. However this Court while exercising powers under

Article 226 of the Constitution of India cannot give any direction or relief

contrary to the law. Once the nature of the said quadrangle is found to

be as of a common area, over which all the occupants/users of the

market have a right, then this Court cannot confer any exclusive right in

the appellant who is occupant of the one of but several shops in the

market and vesting of which rights would definitely have an impact on

the rights of the other occupants thereof. We are rather surprised at the

grant of exclusive licence by the respondents with respect to the said

common area.

7. Though in view of the above, the grounds for which the licence

was revoked are irrelevant but we may observe that considering common

nature of the said quadrangle and the implicit need for 24 hour access

thereto to all the occupants of the market, grant of exclusive licence with

respect thereto to one or two occupants only is bound to interfere with

the needs of others. This Court would not grant such an order which

cannot be enforced and/or which may cause prejudice to others. The

Court is not in a position to supervise the uninterrupted access by the

appellant as is sought to be undertaken before this Court and imposing

any such condition is likely to lead to multiplicity of litigation.

8. The licence of the said quadrangle cannot also be equated to the

licence with respect to a shop. Though the appellant may be correct in

contending that the appellant in the matter of grant of a licence with

respect to the shop cannot be discriminated qua others similarly placed

but the licence with respect to the quadrangle stands on a different

footing. The beneficiaries of the said licence were not all shopkeepers but

only a select few. For this reason also we are of the view that no error

can be found in the action of revocation of such a licence.

9. There is no merit in the appeal; the same is dismissed.

Mohan Singh v. Union of India & Ors. (Rajiv Sahai Endlaw, J.)


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711 712


CRL.L.P.

CUSTOMS ....PETITIONER

VERSUS

MOHAMMAD BAGOUR ....RESPONDENT

(SURESH KAIT, J.)

CRL.L.P NO. : 284/2011 DATE OF DECISION: 25.11.2011

& 275/2011

Narcotic Drugs & Psychotropic Substances Act, 1985—

Section 21, 23, 28, 50, 57, 67—Customs Act, 1962—

Section 120—Respondents were apprehended on their

arrival IGI Airport on suspicion of carrying some

contraband substance—Notice under Section 50 of

The Act and under Section 120 of Customs Act served

upon them giving them an option to get themselves

and their baggage searched before Gazetted Officer

of Customs or a Magistrate—Respondents did not

know either Hindi or English language, thus an official

from KAM Airlines who knew language of Respondents,

explained contents of notices to them—On Knowing

contents, Respondents opted search by Custom

Officer—On search of baggage, Heroin was found

concealed in bottom portion of bag in cotton cloth

belt—After fulfilling requirements of Act, Respondents

were charge sheeted for offences punishable under

Section 21, 23 & 28 of Act—On conclusion of trial, they

were acquitted after finding lacunas in prosecution

case and procedural safeguards contained in Section

50 of Act were not adhered to—Appellant challenged

acquittal in appeal—It was urged on behalf of appellant

that notice under Section 50 of Act was not required

to be served upon Respondents as recovery was

effected from hand bag and not from his person—

Held:- Provisions of Section 50 of NDPS Act, are

mandatory and non compliance renders recovery of

illicit article suspect—Thus, non compliance of these

provisions is viewed seriously and adverse inference

is drawn against prosecution, particulary, when

accused has denied that he has served any such

notice and it has created doubt with regard to

truthfulness of prosecution witnesses.

As far as notice under Section 50 of NDPS is concerned,

Hon.ble Supreme Court in Narcotics Central Bureau v.

Sukh Dev Raj Sodhi 2011 VII AD (SC) 27 has held in para

nos.5 & 6 as under:

“5. The obligation of the authorities under Section 50

of the NDPS Act has come up for consideration

before this court in several cases and recently, the

Constitutional Bench of this Court in the case of

Vijaysingh Chandubha Jadeja v. State of Gujarat

[(2011) 1 SCC 609] has settled this controversy. The

Constitution Bench has held that requirement of

Section 50 of the NDPS Act is a mandatory requirement

and the provision of Section 50 must be very strictly

construed”.

“6. From the perusal of the conclusion arrived at by

this court in Vijaysingh Chandubha Jadeja’s case it

appears that the requirement under Section 50 of the

NDPS Act is not complied with by merely informing the

accused of his option to be searched either in the

presence of a gazette officer or before a Magistrate.

The requirement continues even after that and it is

required that the accused person is actually brought

before the gazetted officer or the Magistrate and in

Para 32, the Constitution Bench made it clear that in

order to impart authenticity, transparency and

creditworthiness to the entire proceedings, an

endeavour should be made by the prosecuting agency

Customs v. Mohammad Bagour (Suresh Kait, J.)


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to produce the suspect before the nearest Magistrate”.

(Para 30)

Importent Issue Involved: Provisions of Section 50 of

NDPS Act are mandatory and non compliance renders

recovery of illicit article suspect—Thus, non compliance of

these provisions is viewed seriously and adverse inference

is drawn against prosecution, particulary, when accused

has denied that he has served any such notice and it has

created doubt with regard to truthfulness of prosecution

witnesses.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. P.C. Aggarwal & Mr. Sunder

Lal Advocates.

FOR THE RESPONDENT : Mr. Yogesh Sexena Advocate.

CASES REFERRED TO:

1. Vijaysingh Chandubha Jadeja vs. State of Gujarat [(2011)

1 SCC 609].

2. Narcotics Central Bureau vs. Sukh Dev Raj Sodhi 2011

VII AD (SC) 27.

3. Vijaysingh Chandubha Jadeja vs. State of Gujarat 2010(4)

LRC 225 (SC).

4. Ajmer Singh vs. State of Haryana 2010(1) LRC 278 (SC).

5. Union of India vs. Balmukand & Ors. 2009(2) Crimes

171 SC.

6. Union of India vs. Shah Alam and Anrs. reported in 2009

(3) RCR (Criminal)

7. State of Haryana vs. Mai Ram, Son of Mam Chand

2008(3) JCC (Narcotics) 188.

8. Madan Lal vs. State of Himachal Pradesh (2003) Crl.L.J.

3868.

9. Kuldeep Singh vs. NCB 2000(1) JCC Delhi 74.

10. State of Punjab vs. Baldev Singh JT 1999(4) SC 595.

RESULT: Petitions dismissed.

SURESH KAIT, J. (Oral)

1. Since the facts and the law involved in both the cases are similar,

therefore both the petitions are being taken to deliver common judgment.

The case of Mohammad Bagour is being taken as a lead case.

2. Vide the instant petition, the petitioner has challenged the impugned

order dated 26.03.2011, whereby Ld. Special Judge, NDPS, Dwarka

Court, New Delhi has acquitted the respondent / accused from the charges.

3. The case in brief is that on 18.10.2007, accused arrived at IGI

Airport by KAM Air-flight No. RQ-0013 holding Passport No. OR686259

dated 13.05.2006. He was carrying only handbag and was not having any

checked in baggage. Surveillance was kept on him in the arrival Hall at

IGI Airport on the suspicion that he may be carrying some contraband

substance. He was stopped near exit Gate of Arrival Hall after crossing

the green channel and was asked by the Custom Officers as to whether

he was carrying any goods, to be declared to customs, but he replied that

he was carrying only personal effects. Thereafter, he was specifically

asked whether he was carrying any contraband goods, but he denied.

Mr. Ganpat Singh, (ACO) was not satisfied with his reply and he called

two independent witnesses to join and in their presence, respondent /

accused was again asked whether he was carrying any goods or

contraband goods to be declared to customs, but he claimed to be

carrying only personal effects. Thereafter notice under Section 50 of

NDPS as well as Section 120 of Customs Act was served upon the

respondent / accused that he had an option to get the examination of his

baggage and personal search conducted before a Gazetted Officer of

Customs or a Magistrate. Since the respondent / accused did not know

either Hindi or English Language, as such one Burham Ahmedi, an official

from KAM Airlines, who knew language of the respondent, was asked

to make him understand the contents of the notice. The said Burham

Ahmedi explained to him the contents of the notice. He expressed that

he had no objection if any Custom Officer searched him or his Baggage.

713 714Customs v. Mohammad Bagour (Suresh Kait, J.)


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The respondent produced his travel documents i.e. the Boarding Card

and Afghan Passport. He was taken to Customs Preventive Room in the

Arrival Hall for further examination. The handbag carried by the respondent

/ accused was checked in the presence of Panch Witness, which was

found containing cloths and personal effects. The bag was emptied of its

content and the bottom portion of the bag was then cut opened and a

white colour stitched cotton cloth belt with velcro having four partitions

was detected, which was pricked with the help of a needle and white

powder oozed out of the same, suspected to be some Narcotics substance.

Respondent / accused was asked about the substance and he affirmed

that it was Narcotic Substance.

4. It is further alleged that after removing the stitches of cotton

belt, 4 packets wrapped with yellow adhesive tape were recovered, which

were given Mark E,F,G and H respectively and were found containing

off- white Powder which was tested with the field test kit and found

positive for ‘Heroin’.

5. The contents of each bag were weighed and were found to be

600 grams, 1263 grams, 1279 grams and 1159 grams. respectively, the

total weight being 4301 grams.

6. Thereafter, the said substance was seized as per procedure.

Three representatives sample of 5 grams each were drawn from the

contents of each of the pocket and were given Mark E-1,E-2,E-3,F-1,F-

2,F-3,G-1,G-2,G-3 and H-1,H-2 and H-3 and were kept in 12 poly packs

and further placed in 12 brown envelops sealed with custom seal no. 6‘

over label bearing the details of the contents, the signatures of Panch

Witness, respondent / accused and the complainant.

7. The remaining substance was kept in four separate plastic bags

of flamingo duty free and then kept in plastic containers which were

wrapped with off White cloth separately and were given Mark-E,F,G and

H and were sealed with customs seal no.6 over label bearing the details

of the contents, the signatures of the Panch Witness, respondent / accused

and the complainant.

8. The statement of the respondent was recorded under Section 67

NDPS Act on 09.10.2007 wherein he admitted the recovery of contraband

from his possession. The respondent / accused was arrested under the

Provisions of NDPS Act. Thereafter, report under Section 57 NDPS Act

was sent by the complainant to Sh. Sanjeev Jain, ACS on 09.10.2007.

9. After sending the information to various authorities by the Assistant

Commissioner Preventive on 09.07.2007 regarding the Heroin and arrest

of the accused on 10.10.2007, the representative samples Mark E-1, F-

1, G-1 and H-1 along with test memo in triplicate were deposited in

CRCL by the Complainant along with forwarding letter duly signed by

the ACS. Vide test report F.No.1/ND/R/2007/CLD – 493 to 496 (N)

dated 21.11.2007 of CRCL, it was opined that on analysis the sample

Mark E-1, F-1, G-1 and H-1 answered positive as ‘Diacetylmorphine’.

The remaining samples were again sent to CRCL on 15.02.2008 through

Sh. Ashok Kumar (ACO) for determining the purity percentage. Fresh

report dated 05.03.2008 was received in this regard from CRCL and

from the same, the purity in sample Mark E-1, F-1,G-1 and H-1 was

found to be as follows:-

Mark Percentage DAM (Heroin)

E1 37.6

F1 40.7

G1 39.7

H1 39.2

10. After completion, the case against the respondent / accused as

filed under Section 21, 23 and 28 NDPS Act. On the basis of the material

available on record charge was also framed under the aforementioned

provisions, to which he plead not guilty and claimed trial.

11. The prosecution in support of its case has examined 7 witnesses.

12. After hearing both the parties, ld. Trial Judge passed his judgement

on the basis of evidence on record that admittedly accused was intercepted

at IGI Airport on his arrival from Afghanistan. However, it is denied by

him that any incriminating substance was recovered from his possession.

To prove the recovery of the contraband from the possession of the

accused the prosecution has examined only PW-5, who is the complainant/

seizing / arresting officer in the present case. In his testimony he deposed



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about interception of respondent / accused at IGI Airport which is admitted

by the respondent / accused. The said witness testified about service of

notice U/s 50 NDPS Act upon the respondent / accused. He testified that

thereafter the hand bag of the accused was checked and was found

containing at its bottom portion, white colour cotton cloth stitched velcro

belt which was found containing one small and three big packets containing

substance suspected to be Heroin, However, his aforesaid testimony has

not been corroborated by any independent evidence as both the panch

witnesses and even Burhan Ahmadi who could have supported his

testimony in this regard being the interpretor in whose presence all the

proceedings were conducted, have not been examined by the prosecution

and these witnesses were dropped on the request of Ld. SPP for Customs.

13. It is further recorded that though non-examination of independent

witnesses by itself does not become fatal to the prosecution. However,

it has to be appreciated differently in the facts and circumstances of each

case. So far the present case is concerned, prosecution itself has claimed

that the accused was not aware of Hindi or English language and as such

Burhan Ahmadi who was acquainted with Afghani language i.e. Dari and

Farsi was joined in the proceedings to explain notice U/s 50 NDPS Act

and notice U/s 102 Customs Act upon the accused, to explain panchnama

proceedings to the accused and to record his statement U/s 67 NDPS

Act. The non-examination of Burhan Ahmadi effects the prosecution

case adversely as it was only this witness who could have explained to

the court the manner in which both the notices U/s 50 NDPS Act and

U/s 102 Customs Act were served upon the respondent / accused.

14. Ld. Trial Judge has also recorded that the offence under NDPS

Act is a grave one. Procedural safeguards provided to the accused under

a statute require strict compliance. Section 50 NDPS Act provides an

extremely valuable right to the concerned person/ suspect to get his

person searched in presence of a Gazetted Officer or a Magistrate. The

compliance with the procedural safeguards contained in Sec. 50 of NDPS

Act, is intended to protect a person against false accusation and frivolous

charges, as also to lend creditability to the search and seizure conducted

by the empowered officer. The search before a Gazetted Officer or a

Magistrate would impart much more authenticity and credit worthiness

to the search and seizure proceeding and it would also strengthen the

prosecution case. It is the duty of the empowered officer to inform the

concerned person/ suspect of the existence of his right to have his

search conducted before a Gazetted Officer or by a Magistrate, so as to

enable him to avail of that right. The prosecution must at the trial establish

that the empowered officer had conveyed the information to the concerned

person of his/ her right of being searched before the Magistrate or a

Gazetted Officer at the time of intended search.

15. Learned Trial Judge has relied upon on the judgment of Hon.ble

Supreme Court in State of Punjab v. Baldev Singh JT 1999(4) SC 595

that courts have to be satisfied at the trial of the case about due compliance

with the requirements provided in Sec. 50 NDPS Act, that no presumption

U/s 54 NDPS Act can be raised against an accused, unless the prosecution

establishes it to the satisfaction of the court that the requirements of Sec.

50 were duly complied with. It is held that the safeguard or protection

to be searched in presence of a Gazetted Officer or a Magistrate has been

incorporated in Sec. 50 of NDPS Act to ensure that persons are only

searched with a view to maintain veracity of evidence derived from such

search. The severe punishments have been provided under the Act for

mere possession of illicit drugs and narcotics substances. Personal search,

more particularly for offences under the NDPS Act are crucial means of

obtaining evidence of possession and it is, therefore, necessary that the

safeguards provided in Sec. 50 of the Act are observed scrupulously. It

was further held that provisions of sub section (1) of Section 50 of

NDPS Act, make it imperative for the empowered officer to inform the

person concerned (suspect) about the existence of his right that if he so

requires, he shall be searched before a Gazetted Officer or a Magistrate

and failure to “inform” the suspect about the existence of his said right

would cause prejudice to him, and in case he so opts, failure to conduct

his search before a Gazetted Officer or a Magistrate, may not vitiate the

trial but would render the recovery of the illicit article suspect and vitiate

the conviction and sentence of an accused, where the conviction has

been recorded only on the basis of the possession of the illicit article,

recovered from the person during a search conducted in violation of the

provisions of Section 50 of the NDPS Act.

16. The Apex Court also noted that in case of Baldev Singh

(Supra) it was not necessary that the information required to be given

under Section 50 of NDPS Act, should be in a prescribed form or in

writing but it was mandatory that the suspect was made aware of the



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existence of his right to be searched before a Gazetted officer or a

Magistrate, if so required by him.

17. The Trial Judge has also referred the case of Vijaysinh

Chandubha Jadeja v. State of Gujarat 2010(4) LRC 225 (SC) wherein

it was held that:

“The object with which right under Section 50(1) of the NDPS

Act, by way of a safeguard, has been conferred on the suspect,

viz., to check the misuse of power, to avoid harm to innocent

persons and to minimise the allegations of planting or foisting of

false cases by the law enforcement agencies, it would be

imperative on the part of the empowered officer to apprise the

person intended to be searched of his right to be searched before

a gazetted officer or a Magistrate. The obligation of the authorised

officer under subsection (1) of Section 50 of the NDPS Act is

concerned, it is mandatory and requires a strict compliance.”

18. So far as the present case is concerned, as per the prosecution,

notice U/s 50 NDPS Act was served upon the respondent/ accused with

the help of interpretor Borhan Ahmadi as the accused had language

problem and was unable to understand the Hindi and English language.

PW 5 testified in his chief examination that in the presence of panch

witnesses he had disclosed to the accused that he had the option that the

search of his baggage and himself could be conducted before a Magistrate

or a Gazetted officer of a Custom officer to which he told that he did

not know Hindi and English language. However, he understood the Farsi

and Dari languages. He stated that by the expression of respondent/

accused he came to know that he did not know Hindi or English language

and knew only Dari and Farsi languages and one person namely Borhan

Ahmadi was called from KAM Airline who was acquainted with Dari and

Farsi languages, to translate the proceedings to the accused in his own

language. On his request Borhan Ahmadi explained the contents of both

the notices to the accused and informed him that he had option to get

search of his baggage or his person in the presence of a Magistrate or

a Gazetted Officer of customs and accused told Borhan Ahmadi that he

had no objection if any custom officer took the search of his person or

his baggage. Thereafter the signatures of both the panch witnesses,

accused and Borhan Ahmadi were taken on both the notices Ex. PW 5/

A and Ex. PW 5/B respectively. The respondent / accused had also put

his thumb impression on the notices at point F and G. That Borhan

Ahmadi had made an endorsement at point X to X on both the notices

to the effect,

“Read over and explained in vernaculars to Mr Mohd. Bagour

who consented for search by any custom officer and signed in

token of acceptance.”

19. So far as Borhan Ahmadi is concerned, he has not been examined

in the present case on the ground that he is not residing at the given

address. The panch witnesses namely Mohd. Shafiq and Bhupender Singh

have also not been examined, despite last opportunity they were not

produced by the prosecution and were dropped from the array of the

witnesses by the court vide order dated: 11.01.2011 and 0l.2.2011

respectively. PW 5 admitted in answer to court queries that the consent

of the accused for his search by the custom officer was not taken in

writing in his own language and that no reason has been given for not

obtaining his consent in his own handwriting which could have been later

on translated to the court by the interpreter. In the absence of examination

of Borhan Ahmadi, particularly, when PW 5 himself is not aware of the

Afghani language, as such it has not been proved on record in any

manner that the accused was explained the contents of the notices U/s

50 NDPS Act and even U/s 102 Customs Act properly. The endorsement

of Borhan Ahmadi made on the notice Ex. PW 5/B from point X to X

that “Read over and explained in vernaculars to Mr Mohd. Bagour who

consented for search by any custom officer and signed in token of

acceptance,” itself shows that the accused had not been explained in any

manner. It was his legal right to get his person or baggage searched in

the presence of a Gazetted officer or a Magistrate, as in the notice U/

s 50 NDPS Act it is not mentioned at all that it was the legal right of

the accused.

20. Ld. Trial Judge has also recorded that even the statement of

Borhan Ahmadi U/s 67 NDPS Act Ex. PW 5/Q does not find mention the

manner in which the notice U/s 50 NDPS Act was served upon the

accused nor it finds mention that the accused was explained that it was

his legal right to get his search conducted in the presence of a Magistrate

or a Gazetted officer.



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21. Further ld. Trial Judge has also observed that if the notice was

served upon the accused by Borhan Ahmadi at the instance of PW5, then

the reply of the notice should have been taken from the respondent /

accused in his own handwriting which could have cleared all the doubts

about the manner in which it was served and whether the respondent /

accused had understood the contents and the purpose of Sec. 50 of the

Act and whether he had consented for his search to be conducted by the

officer of customs or before a Magistrate or any other the Gazetted

Officer.

22. Learned SPP for Customs argued before the Trial Court and

learned counsel for the appellant has also argued before this Court that

the notice under Section 50 NDPS Act was not required to be served

upon the respondent/accused in the present case as recovery was effected

from his handbag and nor from his person. In support of his arguments

he has relied upon the case of Ajmer Singh v. State of Haryana

2010(1) LRC 278 (SC) and has referred to para 13 wherein the contention

of the appellant was recorded that the provision of Section 50 of the Act

would also apply, while searching the bag, briefcase etc., carried by the

person and its non compliance would be fatal to the proceedings initiated

under the Act. Their lordships find no merit in the contention of the

learned counsel. It requires to be noticed that question of compliance or

non-compliance of Section 50 of the NDPS Act is relevant only where

search of a person is involved and the said Section is not applicable nor

attracted where no search of a person is involved. Search and recovery

from a bag, briefcase, container, etc., does not come within the ambit

of Section 50 of the NDPS Act, because firstly, Section 50 expressly

speaks of search of person only. Secondly, the Section speaks of taking

of the person to be searched by a Gazetted Officer or Magistrate for the

purpose of search. Thirdly, this issue was considered in Madan Lal v.

State of Himachal Pradesh (2003) Crl.L.J. 3868 wherein the Court has

observed, “A bare reading of Section 50 of the NDPS Act, shows that

it only applies in a case of personal search of a person. It does not extend

to search of a vehicle or a container or a bag or premises.”

23. This issue has already decided in the case of Union of India

vs. Shah Alam and Anrs. reported in 2009 (3) RCR (Criminal) and held

that before the recovery was effected from his bag, baggage and at the

time when notice was served upon the respondents /accused, it was not

known to PW5 that recovery would not be effected from his person but

from his bag or baggage.

24. The Trial Judge has recorded that notice Ex PW5/B served

upon the respondents/accused was not in compliance of provisions of

Section 50 of NDPS Act, as it was partial notice and as the respondents/

accused had offered to be searched in the presence of a Gazetted Officer

of a custom besides a Magistrate. The purpose behind Section 50(1)

NDPS Act, is to avoid criticism of arbitrary and high handed action

against authorised officer. It has to be borne in mind that a Gazetted

officer belonging to the department which is effecting a seizure may have

bias in favour of the department, whereas no such bias can be attributed

to a Magistrate or a Gazetted Officer belonging to the other department.

Thus, associating a Gazetted Officer with the raiding party makes such

officer impliedly interested in the success of the raid.

25. Admittedly, in the present case the notice under Section 50 of

NDPS Act, served to respondent/accused and option was given to the

accused that if he so desires his baggage and personal search could be

conducted before the Magistrate or a Gazetted Officer of a Customs.

26. The Trial Judge has also relied upon a case of Kuldeep Singh

v. NCB 2000(1) JCC Delhi 74 in which it has been held by this Court

that the Gazetted Officer belonging to the department which is effecting

a seizure may have bias in favour of the department, whereas no such

bias can be attributed to a Magistrate or a Gazetted Officer belonging to

the other department. Thus in the present case the offer given to the

accused to be searched by a Magistrate or by a Gazetted Officer of the

custom was partial offer as the accused was not given an option for her

baggage and personal search to be conducted in the presence of a Gazetted

Officer belonging to the other department.

27. Learned Trial Judge has opined that neither notice Ex.PW5/B

was proper notice nor it was served upon the accused and the accused

was not informed of his right to be searched in the presence of a

Gazetted Officer or a Magistrate which is mandatory.

28. The Trial Judge has also recorded that non-examination of

Borhan Ahmadi is fatal to the prosecution, as he was the best witness

to prove as to what was explained by him on behalf of the complainant,



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to the accused while serving notice under Section 50 NDPS Act. Mere

examination of PW5 and his testimony to the effect that notice was

served through Borhan Ahmadi upon the accused by itself is not sufficient.

29. The Trial Judge has referred to the case of Supreme Court in

Vijaysingh Chandubha Jadeja v. State of Gujarat 2010(4) LRC 225

(SC); wherein it is recorded that the provision of Section 50 of NDPS

Act, are mandatory and non-compliance renders the recovery of illicit

article suspect. Thus the non-compliance of these provisions is viewed

seriously and adverse inference is drawn against the prosecution,

particularly, when the accused has denied that he was served any such

notice and it has created doubt with regard to the truthfulness of the

prosecution witness.

30. As far as notice under Section 50 of NDPS is concerned,

Hon.ble Supreme Court in Narcotics Central Bureau v. Sukh Dev Raj

Sodhi 2011 VII AD (SC) 27 has held in para nos.5 & 6 as under:

“5. The obligation of the authorities under Section 50 of the

NDPS Act has come up for consideration before this court in

several cases and recently, the Constitutional Bench of this Court

in the case of Vijaysingh Chandubha Jadeja v. State of

Gujarat [(2011) 1 SCC 609] has settled this controversy. The

Constitution Bench has held that requirement of Section 50 of

the NDPS Act is a mandatory requirement and the provision of

Section 50 must be very strictly construed”.

“6. From the perusal of the conclusion arrived at by this court

in Vijaysingh Chandubha Jadeja’s case it appears that the

requirement under Section 50 of the NDPS Act is not complied

with by merely informing the accused of his option to be searched

either in the presence of a gazette officer or before a Magistrate.

The requirement continues even after that and it is required that

the accused person is actually brought before the gazetted officer

or the Magistrate and in Para 32, the Constitution Bench made

it clear that in order to impart authenticity, transparency and

creditworthiness to the entire proceedings, an endeavour should

be made by the prosecuting agency to produce the suspect before

the nearest Magistrate”.

31. The prosecution has also relied upon the statement of respondent/

accused recorded under Section 67 of NDPS Act which is Ex PW5/E on

record. The prosecution has relied upon the statement of respondents/

accused under Section 67 of NDPS Act, before the Trial Court which

is Ex PW5/C and before this Court.

32. The law is settled that confessional statement of the accused is

a weak type of evidence and conviction should not be based on it and

it needs to be corroborated by independent evidence.

33. The learned counsel for the appellant in support of this argument

has relied upon a judgment of the Supreme Court in State of Haryana

v. Mai Ram, Son of Mam Chand 2008(3) JCC (Narcotics) 188 wherein

it is recorded that so far as examination of only official witness is

concerned it is to be noted that only independent witness who was

examined to speak about the seizure did not support the prosecution

version, no material was brought on the record by the defence to discredit

the evidence of official witnesses. The ultimate question is whether the

evidence of official witnesses suffered from any infirmity.

34. In the case of Union of India v. Balmukand & Ors. 2009(2)

Crimes 171 SC it is held that conviction should not be based merely on

the basis of statement made under Section 67 of the Act without any

independent corroboration.

35. PW5 in his cross-examination stated that he had given questions

to Borhan Ahmadi which were put by him to the accused and then he

had reduced into writing his reply in English language. However, it is

seen that there is no such framed questions filed on record which were

put to the accused by Borhan Ahmadi and in response to the same he

recorded the statement of accused under Section 67 NDPS Act except

the bald testimony of PW5, there is no evidence on record that the

statement Ex.PW5/E was made by the accused through Borhan Ahmadi,

as Borhan Ahmadi has not been examined as a prosecution witness to

prove as to what statement was made by the respondents/accused to him

in his own language which he translated in English language. It is seen

that there is no statement of the accused recorded by Borhan Ahmadi in

the language of the accused so as to say that the English translated

version of the accused was correct. Deposition would have been different



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if the statement of respondents/accused had been recorded in his own

language and thereafter translation of the same in English language was

filed on record. It is also not on record that accused was warned before

recording his alleged statement that he had a right to maintain a silence

which was his legal right.

36. The Trial Court has also taken note that statement of Borhan

Ahmadi himself was recorded on 21st March, 2008 i.e., after more than

five months of the alleged incident and there is no explanation on behalf

of the prosecution as to why his statement was recorded with inordinate

delay and at the same time non mentioning in his statement about fact

that he had recorded the statement of accused U/s 67 NDPS Act after

he was given questions by PW 5 to be put to the respondent/accused,

leads to the inference that no such statement was made by the accused.

37. In these circumstances, the Trial Court has recorded that it

becomes immaterial whether the accused retracted from his such statement

or not. At the same time the admission of the accused in the said

statement about recovery of contraband from his possession becomes

immaterial, particularly, in view of the fact that it is admitted by the

prosecution that the accused did not know any other language except

Dari and Farsi language and the said statement is in English language and

it is not proved on record that it was made by the accused.

38. The Trial Judge has also recorded that there is no evidence on

record except the bald testimony of PW5 that the contents of panchnama

Ex.PW5/C were read over to the accused in his own language by Borhan

Ahmadi for the reasons that Borhan Ahmadi had not appeared in the

witness box.

39. Besides, the Trial Court also find discrepancies with regard to

preparation of Test Memo. The complaint is silent about preparation of

the Test Memos at the time of drawl of sample. It does not find mention

as to when the Test Memos were prepared. PW5 in his chief examination

testified that the Test memo was prepared in triplicate at the time of the

drawal of the samples, whereas perusal of the Test Memo Ex.PW5/L

shows that it is bearing the date under the signature of PW5 as 10.10.2007

and as such the same was prepared on 10.10.2007. Therefore, there is

contradictory evidence led by the prosecution with regard to the date of

the preparation of the Test Memos. If the chief examination of PW5 is

believed to be correct, then it is for the prosecution to explain as to

where are the Test Memos prepared on 09.10.2007 and in case the Test

Memo Ex.PW5/L is believed to be correct then the question arises why

the Test Memos were not prepared on the date and time of drawal of

the samples which amounts to non-compliance of the standing instructions

1/88.

40. At the same time it is brought to the notice of the court by the

defence counsel that PW5 in his cross examination categorically testified

that he had not obtained the customs seal No.6 after 09.10.2007. If the

seal was not taken again after 09.10.2007, then how the Test Memos

were prepared on 10.10.2007 without customs seal No. 6. There is no

evidence on record that on 10.10.2007 PW5 had withdrawn customs

seal No.6 from the concerned SDO(A) and after preparing the Test

Memo had returned the same. At the same time there is no evidence on

record that the Test Memos were bearing the custom seal No.6 as there

is no facsimile impression of the seal on the Test Memo. Perusal of the

office copy of the Test Memo Ex.PW5/L shows that it is bearing the lac

seal which too was found in broken condition and is covered with

transparent adhesive tape and the seal impression is not legible.

41. Similarly, the Test Memo on which the report of the CRCL

Ex.PX is prepared, the same is not bearing the facsimile of the customs

seal no.6 and though the impression on fixation of lac seal is there but

the lac is missing. In such circumstances, the seal impression could not

have been read by the Lab Assistant, CRCL, or even the chemical examiner

for comparing the same with the seals affixed on the sample parcel Mark

E-1 to H-1. It is astonishing that in the report of the CRCL it is mentioned

that the each sample packet was sealed with five red tape seals and

impression of each seal affixed on each of the four sample packets tallies

with the facsimile of seal as given on the Test Memo, whereas in fact

there is no facsimile of the seal on the Test Memo. There is no explanation

on behalf of the prosecution that in such circumstances as to with which

seal impression, the seals which were found on sample envelopes were

compared by the officials or the chemical examiner in the CRCL. It

appears that observation to this effect in the Test Report was made in

routine without application of mind and comparison of the seals. Thus

a important link in the chain of the prosecution evidence is missing and



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it cannot be said conclusively that the samples which were examined in

the CRCL and were opined to be containing diacetylmorphine were the

true representative of the samples drawn from the recovered substance.

42. I note that Ld. Trial Judge has also recorded that there is no

evidence on record that the sample Mark E1to H1 were withdrawn by

PW 5 from the custody of any SDO(A) for deposit with CRCL. The only

witness examined to this effect is PW 4 Sh. Kishan Chand, Supdt., who

testified that on 9.10.2007 at about 8 am ACO Ganpat Singh i.e. PW 5

had handed over to him 18 packets vide DR Nos. 3927 to 3931 all dated

9.10.2007 vide entry No.4067 and all these packets were handed over by

this witness to the next SDO (A) vide entry No 4069 dated 09.10.2007.

Both these relevant entries are proved as Ex PW 4/A and are dated

09.10.2007. Besides, PW 4 no other SDO (A) or valuable godown incharge

has been examined by the prosecution to prove the safe custody of the

case property and the representative sample till the case property was

produced in the court and sample Mark E l to H1were sent to the CRCL.

Neither any witness has been examined nor any entry in the SDO(A)

register or valuable godown register has been proved on record to prove

that PW 5 had withdrawn samples Mark E1 to H1 on 10.10.2007 for

deposit in the CRCL. Thus a vital link in the chain of the prosecution

case is missing.

43. Another important fact also noted by ld. Trial Judge is that Test

Memo in the present case was not prepared at the time of drawl of the

samples on the intervening night of 08.10.2007/09.10.2007 but as per the

testimony if PW 5 Sh. Ganpat Singh ACO and even the Test Memo

Ex.PW 5/L itself speaks that the same was prepared on 10.10.07, there

is no evidence on record that once seal was returned by PW 5 to PW

4 Sh. Kishan Chand SDO(A), the custodian of the seal, it was ever

issued again to PW 5 for preparing the Test Memos. The trial court has

opined that this itself leads to the inference that the seal was easily

accessible to PW 5 Sh Ganpat Singh ACO and it is only for this reason

he could prepare the Test Memos on 10.10.2007.

44. It is also observed that since the Test memos were prepared on

10.10.2007 and the custom seal was in the custody of PW 5, the samples

Mark E l to Hl were also in his custody and as such the tampering of

the said samples cannot be ruled out.

45. Keeping the discussion into view, the Trial Judge has acquitted

all the charges under Section 21/23 read with Section 28 of NDPS Act,

1985.

46. Keeping the above discussion and settled law into view, I find

no discrepancy in the order passed by ld. Trial Judge. Therefore, I am

not inclined to interfere with the judgment passed by ld. Trial Judge and

confirm the same.

47. Accordingly, both Crl. LP 275/2011 & Crl.LP284/2011 are

dismissed.

48. Consequently, both the respondents/accused shall be released

forthwith, if not required in any other case.

49. Copy of order be sent to Jail Superintendent, for compliance.

50. No order to costs.


RFA

ANAND SINGH ....APPELLANT

VERSUS

ANURAG BAREJA & ORS. ....RESPONDENTS

(VALMIKI J. MEHTA, J.)

RFA NO. : 480/2011 DATE OF DECISION: 28.11.2011

Code of Civil Procedure, 1908—Section 96; Indian

Contract Act, 1872—Section 74—Suit of Appellant/

proposed buyer for recovery of earnest money paid

under Agreement to sell, dismissed—HELD—Claim to

forfeit amount is a claim in the nature of liquidated

damages under Section 74 of Contract Act—Seller



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under an agreement to sell cannot forfeit amount

unless loss is pleaded and proved by him on account

of breach of contract—Appeal allowed—Suit decreed.

It is therefore clear that a seller under an agreement to sell,

when he has received monies under the agreement to sell,

cannot forfeit such amount, unless loss is pleaded and

proved by him. It is the respondents/defendants who have to

plead and prove entitlement to forfeiture on account of loss

having been caused on account of breach of contract by the

appellant/plaintiff/proposed buyer. Thus, even assuming the

appellant/plaintiff/proposed buyer is guilty of breach of

contract, yet, the respondents/defendants will have to raise

appropriate pleadings with respect to loss, get an issue

framed, and thereafter lead evidence on such issue to show

that losses have been caused to them on account of breach

of the agreement to sell by the appellant/plaintiff/proposed

buyer, entitling the forfeiture of the amount. (Para 3)

Indubitable position which has emerged from the record is

that there is no pleading of the respondents/defendants of

any loss having been caused on account of breach of

contract by the appellant/plaintiff. There is also no issue

framed on this aspect. There is also obviously no evidence

led on behalf of the respondents/defendants as to how the

breach of contract by the appellant/plaintiff has caused loss

to the respondents/defendants entitling them to forfeit the

amount. In my opinion, therefore, in view of the ratio of the

Constitution Bench judgment of the Supreme Court in the

case of Fateh Chand (supra), the respondents/defendants

are not entitled to forfeit the huge amount of Rs.

10,00,000/-. (Para 6)

Important Issue Involved: A seller who has received

money under the agreement to sell, cannot forfeit such

amount unless loss is pleaded & proved by him.

[An Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. Rajesh Bhatia Advocate.

FOR THE RESPONDENTS : Mr. A.P. Singh, Advocate. Mr.

Pradeep Dhingra & Mr. Sachin sood,

Advocates.

CASE REFERRED TO:

1. Fateh Chand vs. Balkishan Dass, (1964) 1 SCR 515;

AIR 1963 SC 1405.

RESULT: Appeal allowed

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal filed under

Section 96 of the Code of Civil Procedure (CPC), 1908 is to the impugned

judgment of the Trial Court dated 16.5.2011. By the impugned judgment,

the Trial Court dismissed the suit of the appellant/plaintiff/proposed buyer

for recovery of Rs.10,00,000/- paid under an agreement to sell dated

4.11.2006 with respect to property bearing no. WZ-49B (admeasuring

300 square yards), Khasra No.144-145 , Village Palam, Delhi.

2. Learned counsel for the appellant/plaintiff has argued the appeal

with reference to the Constitution Bench judgment of the Supreme Court

reported as Fateh Chand Vs Balkishan Dass, (1964) 1 SCR 515; AIR

1963 SC 1405, wherein the Supreme Court has said that even if the

buyer is guilty of breach of performance of an agreement to sell, however,

seller cannot forfeit the earnest money received under the agreement to

sell, as the forfeiture is hit by Section 74 of the Indian Contract Act,

1872 being in the nature of the penalty and forfeiture cannot take place

unless loss is pleaded and proved by the seller. Paragraphs 8, 10, 15 and

16 of the judgment in the case of Fateh Chand (supra) are relevant and

read as under:

8. The claim made by the plaintiff to forfeit the amount of Rs

24,000 may be adjusted in the light of Section 74 of the Indian

Contract Act, which in its material part provides:-

“When a contract has been broken, if a sum is named in the

contract as the amount to be paid in case of such breach, or if

729 730Anand Singh v. Anurag Bareja & Ors. (Valmiki J. Mehta, J.)


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the contract contains any other stipulation by way of penalty, the

party complaining of the breach is entitled, whether or not actual

damage or loss is proved to have been caused thereby, to receive

from the party who has broken the contract reasonable

compensation not exceeding the amount so named or as the case

may be, the penalty stipulated for.”

The section is clearly an attempt to eliminate the sometime

elaborate refinements made under the English common law in

distinguishing between stipulations providing for payment of

liquidated damages and stipulations in the nature of penalty. Under

the common law a genuine pre-estimate of damages by mutual

agreement is regarded as a stipulation naming liquidated damages

and binding between the parties: a stipulation in a contract in

terrorem is a penalty and the Court refuses to enforce it, awarding

to the aggrieved party only reasonable compensation. The Indian

Legislature has sought to cut across the web of rules and

presumptions under the English common law, by enacting a

uniform principle applicable to all stipulations naming amounts to

be paid in case of breach, and stipulations by way of penalty.

10. Section 74 of the Indian Contract Act deals with the measure

of damages in two classes of cases (i) where the contract names

a sum to be paid in case of breach and (ii) where the contract

contains any other stipulation by way of penalty. We are in the

present case not concerned to decide whether a contract

containing a covenant of forfeiture of deposit for due performance

of a contract falls within the first class. The measure of damages

in the case of breach of a stipulation by way of penalty is by

Section 74 reasonable compensation not exceeding the penalty

stipulated for. In assessing damages the Court has, subject to the

limit of the penalty stipulated, jurisdiction to award such

compensation as it deems reasonable having regard to all the

circumstances of the case. Jurisdiction of the Court to award

compensation in case of breach of contract is unqualified except

as to the maximum stipulated; but compensation has to be

reasonable, and that imposes upon the Court duty to award

compensation according to settled principles. The section

undoubtedly says that the aggrieved party is entitled to receive

compensation from the party who has broken the contract,

whether or not actual damage or loss is proved to have been

caused by the breach. Thereby it merely dispenses with proof of

“actual loss or damage”; it does not justify the award of

compensation when in consequence of the breach no legal injury

at all has resulted, because compensation for breach of contract

can be awarded to make good loss or damage which naturally

arose in the usual course of things, or which the parties knew

when they made the contract, to be likely to result from the

breach.

15. Section 74 declares the law as to liability upon breach of

contract where compensation is by agreement of the parties pre-

determined, or where there is a stipulation by way of penalty.

But the application of the enactment is not restricted to cases

where the aggrieved party claims relief as a plaintiff. The section

does not confer a special benefit upon any party; it merely declares

the law that notwithstanding any term in the contract

predetermining damages or providing for forfeiture of any property

by way of penalty, the court will award to the party aggrieved

only reasonable compensation not exceeding the amount named

or penalty stipulated. The jurisdiction of the court is not

determined by the accidental circumstance of the party in default

being a plaintiff or a defendant in a suit. Use of the expression

“to receive from the party who has broken the contract” does

not predicate that the jurisdiction of the court to adjust amounts

which have been paid by the party in default cannot be exercised

in dealing with the claim of the party complaining of breach of

contract. The court has to adjudge in every case reasonable

compensation to which the plaintiff is entitled from the defendant

on breach of the contract. Such compensation has to be

ascertained having regard to the conditions existing on the date

of the breach.

16. There is no evidence that any loss was suffered by the

plaintiff in consequence of the default by the defendant, save as

to the loss suffered by him by being kept out of possession of

the property. There is no evidence that the property had

depreciated in value since the date of the contract provided; nor



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was there evidence that any other special damage had resulted.

The contact provided for forfeiture of Rs 25,000 consisting of

Rs, 1039 paid as earnest money and Rs 24,000 paid as part of

the purchase price. The defendant has conceded that the plaintiff

was entitled to forfeit the amount of Rs 1000 which was paid

as earnest money. We cannot however agree with the High

Court that 13 percent of the price may be regarded as reasonable

compensation in relation to the value of the contract as a whole,

as that in our opinion is assessed on an arbitrary assumption.

The plaintiff failed to prove the loss suffered by him in

consequence of the breach of the contract committed by the

defendant and we are unable to find any principle on which

compensation equal to ten percent of the agreed price could be

awarded to the plaintiff. The plaintiff has been allowed Rs 1000

which was the earnest money as part of the damages. Besides

he had use of the remaining sum of Rs 24,000, and we can

rightly presume that he must have been deriving advantage from

that amount throughout this period. In the absence therefore of

any proof of damage arising from the breach of the contract, we

are of opinion that the amount of Rs 1000 (earnest money)

which has been forfeited, and the advantage that the plaintiff

must have derived from the possession of the remaining sum of

Rs 24,000 during all this period would be sufficient compensation

to him. It may be added that the plaintiff has separately claimed

mesne profits for being kept out possession for which he has

got a decree and therefore the fact that the plaintiff was out of

possession cannot be taken, into account in determining damages

for this purpose. The decree passed by the High Court awarding

Rs.11,250 as damages to the plaintiff must therefore be set

aside. (Underlining added)

3. It is therefore clear that a seller under an agreement to sell, when

he has received monies under the agreement to sell, cannot forfeit such

amount, unless loss is pleaded and proved by him. It is the respondents/

defendants who have to plead and prove entitlement to forfeiture on

account of loss having been caused on account of breach of contract by

the appellant/plaintiff/proposed buyer. Thus, even assuming the appellant/

plaintiff/proposed buyer is guilty of breach of contract, yet, the

respondents/defendants will have to raise appropriate pleadings with respect

to loss, get an issue framed, and thereafter lead evidence on such issue

to show that losses have been caused to them on account of breach of

the agreement to sell by the appellant/plaintiff/proposed buyer, entitling

the forfeiture of the amount.

4. The case of the appellant/plaintiff was that the total sale

consideration for the property was Rs.60,00,000/-, out of which a sum

of Rs. 10,00,000/- was paid. Though, initially certain cheques, which

were issued by the appellant/plaintiff, bounced however, subsequently

the appellant/plaintiff paid the amount of Rs. 7,00,000/- in cash, making

a total payment of Rs. 10,00,000/- under the agreement to sell.

5. It is urged on behalf of the respondents/defendants, by their

counsel in this Court, that the respondents/defendants only received a

sum of Rs. 7,00,000/- and not a sum of Rs. 10,00,000/-. It is urged that

even this amount of Rs. 7,00,000/- is entitled to be forfeited by the

respondents/defendants on account of breach of contract by the appellant/

plaintiff.

6. Indubitable position which has emerged from the record is that

there is no pleading of the respondents/defendants of any loss having

been caused on account of breach of contract by the appellant/plaintiff.

There is also no issue framed on this aspect. There is also obviously no

evidence led on behalf of the respondents/defendants as to how the

breach of contract by the appellant/plaintiff has caused loss to the

respondents/defendants entitling them to forfeit the amount. In my opinion,

therefore, in view of the ratio of the Constitution Bench judgment of the

Supreme Court in the case of Fateh Chand (supra), the respondents/

defendants are not entitled to forfeit the huge amount of Rs.

10,00,000/-.

7. Learned counsel for the respondents/defendants sought to argue

that the liability should only be fixed on the respondents/defendants for

a sum of Rs. 7,00,000/- as an amount of Rs. 3,00,000/- was paid to the

property broker for entering into the subject transaction. Besides the fact

that one of the property broker is none else than the maternal uncle of

the respondents/defendants, however, this issue is immaterial, inasmuch

as, in the Trial Court it has been proved by the appellant/plaintiff that a

sum of Rs. 10,00,000/- was received by the respondents/defendants

under the agreement to sell and if the respondents/defendants made some



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payment to a broker the same is a matter between the respondents/

defendants and their broker, and that cannot mean that Rs. 10,00,000/

- is not received by the respondents/defendants. The payment of Rs.

10,00,000/- to the respondents/defendants is proved on behalf of the

appellant/plaintiff, inter alia, by the admission of the respondents/defendants

in the notice dated 24.2.2007, Ex.DW1/P4 sent by the respondents/

defendants, and in which notice, the respondents/defendants have claimed

balance payment of Rs. 50,00,000/-. Since the total consideration is

admittedly Rs. 60,00,000/-, claiming of balance payment of Rs. 50,00,000/

- is a clear cut pointer to the respondents/defendants having received Rs.

10,00,000/-. An admission by a person is the best proof of a disputed

fact. I therefore do not find any error in the impugned judgment holding

that the respondents/defendants had, in fact, received a sum of Rs.

10,00,000/-.

8. The argument of the learned counsel for the respondents/

defendants that the present case does not fall under Section 74 of the

Indian Contract Act, 1872 is quite clearly misconceived inasmuch as a

claim to forfeit the amount is clearly a claim in the nature of liquidated

damages falling under Section 74 of the Indian Contract Act, 1872. This

issue is no longer res integra, in view of the decision in the case of Fateh

Chand (supra). However, since the judgment in the case of Fateh Chand

(supra) allows for forfeiting of a nominal amount, I would therefore hold

that the respondents/defendants are entitled to forfeit a sum of ‘50,000/

-, out of the total payment of Rs. 10,00,000/- received by the respondents/

defendants.

9. In view of the above, the appeal is allowed. The impugned

judgment and decree is set aside. The suit of the appellant/plaintiff will

stand decreed against the respondents/defendants for a sum of Rs.

9,50,000/- along with interest at 12% per annum simple from 24.2.2007

till payment. Parties are left to bear their own costs. Decree sheet be

prepared. Trial Court record be sent back.


CRL.A

RAJU @ RANTHU @ RAJU KUMAR ....APPELLANTS

SANJAY KUMAR

VERSUS


(S. RAVINDRA BHAT & PRATIBHA RANI, JJ.)

CRL. APPEAL NO. : 700/2011 DATE OF DECISION: 28.11.2011

& 1093/2011

Indian Penal Code, 1860—Sections 302, 34—Appellant

convicted for having committed murder of one Sh.

Saual—Prosecution case rested on circumstantial

evidence i.e. last seen evidence, recovery of weapon

of offence, recovery of sleepers (Chappals) of

deceased worn by him at the time of incident and

blood stained Baniyan of one of appellant—It was

urged on behalf of appellants “last seen” circumstance

not proved as deceased was allegedly taken away by

appellants around 4:30 p.m. but his body found on

next date morning around 7 a.m. the time gap was

large being 12 hours and during this time possibility

of any other perpetrator of crime other than appellants

cannot be ruled out—Held:- Last seen theory comes

into play where the time-gap between the point of

time when the accused and the deceased were seen

last alive and the deceased is found dead is so small

that possibility of any preson other than the accused

being the author of the crime becomes impossible—

Testimony of prosecution witness not conclusive as

regard to last seen theory.



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The last seen theory kicks in – (if one may use that

expression) - only when the prosecution can establish that

the possibility of others being with the accused can be

ruled–out altogether and more crucially, the time-gap between

the death and the last seen circumstance is so narrow as to

rule out involvement of anyone else with certainty. In this

case, the time as to when various witnesses saw the

deceased with the accused is confused and conflicting.

(Para 16)

Important Issue Involved: last seen theory comes into

play where the time-gap between the point of time when

the accused and the deceased were seen last alive and when

the deceased is found dead is so small that possibility of any

person other than the accused being the author of the crime

becomes impossible.

[Sh Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. Vivek Sood Advocate Ms.

Sahilaa, Advocate.

FOR THE RESPONDENT : Mr. Sanjay lao, APP.

CASES REFERRED TO:

1. Kulvinder Singh and Another vs. State of Haryana, 2011

(5) SCC 258.

2. Ramreddy Rajesh Khanna Reddy vs. State of A.P AIR

2006 SC 1656.

3. Ramjee Rai vs. State of Bihar 2006 (13) SCC 229

4. State of U.P. vs. Satish 2005 CriLJ 1428.

RESULT: Appeals Allowed.

S. RAVINDRA BHAT, J.

1. In these Appeals, the judgment and order of the learned Additional

Sessions Judge dated 09.12.2010 in SC No. 126/2008 has been challenged.

By the impugned judgment, the Trial Court convicted the present Appellants

for committing the offences punishable under Sections 302/34 IPC and

sentenced them to life imprisonment.

2. According to the prosecution, P.S. Kapashera received DD

No.11A on 11.08.2008 at 07.10 AM, intimating about a dead body in Gali

No.4, behind service station, near Mandu Ram’s plot. Inspector S.D.

Meena, along with Inspector Lakhinder Singh, SHO, P.S. Kapasahera,

HC Zile Singh, Const. Dharmender, Const. Dharambir, Const. Kamal and

Const. Naveen went to the spot and found the dead body of an unidentified

man, aged about 25/30 years clothed in blue jeans, red T-shirt and

mustard underwear. A black thread bearing the image of Christ hung

around the neck of the body. The dead man had a black and yellow belt;

his height was about 5 feet 7 inches, slim and dark. The body had a stab

wound in the abdomen and there was also a cut in the T-shirt. FIR

No.176/08 was registered in the police station u/s.302 IPC. The body

could not be identified and was sent to DDU Hospital for preservation.

Posters were distributed in the whole area and were pasted in public

places. The police started showing the photograph of the body to

shopkeepers and rehriwalas for identification purposes. One Bhola,

Proprietor of Satyam Communication, on Old Gurgaon Road, Kapasahera,

identified the photograph to be that of Saual, who worked at Gopal’s

rehri. He also showed the rehri to the police. Gopal confirmed that the

photograph was Saual’s; he was the son of Sh. Silvester, R/o Village

Jamdoli, P.S. Dumri, Distt. Gumla, Jharkhand. He also identified the dead

body as that of Saual and further told the police that the deceased had

been working on his rehri selling Chole Bhature for the past about one

and a half years. He said that Saual had left with two boys named Sanjay

and Raju on 10.08.2008 at about 4.30 or 5 P.M.; those boys used to

meet him and also used to meet him earlier also. He further told the police

that Saual did not return till the morning of 11.08.2008, due to which he

dialed Saual’s mobile, i.e. 9810341036, but the phone was answered by

someone else, who claimed that Saual was in the bathroom and thereafter

switched it off. He suspected Sanjay and Raju of having committed

Saual’s murder.

3. The two accused were later arrested; they made their disclosure

statements which led to recovery of the weapon of offence i.e. stainless

steel knife, slippers (chappals) of the deceased worn by him at the time

737 738 Raju @ Ranthu @ Raju Kumar, Sanjay Kumar v. State (S. Ravindra Bhat, J.)


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of the incident and Sanjay’s blood stained baniyan, all from different

places. It was also alleged that the two accused revealed, to the police,

that they belonged to Jharkhand and had been working in a private

company in Gurgaon. They used to take Chole Bhature from the Kapashera

border, while returning from their place of work and had developed

friendship with deceased Saual as he too belonged to Jharkhand. Raju

had borrowed a sum of Rs. 50/- from Saual on the assurance that he

would return it within one or two days, but he did not do so, even after

10 or 15 days. A dispute leading to Raju being beat up by Saual for not

returning his money, had taken place; Raju therefore, bore a grudge

against Saual. The two of them (accused) took Saual with them, on

10.08.2008 from his rehri for eating and drinking. They bought liquor

from a nearby vendor and went to Room No.77 and consumed liquor.

They made Saual drink excessively. When they reached a secluded place

in Gali No.4, Raju stabbed Saual in the abdomen with a knife, which he

had brought out from his room hidden in a towel. Saual shouted and fell,

whereupon Raju became terrified and left the spot after throwing the

knife down, on the spot. Sanjay threw the slippers worn by Saual in a

nearby vacant plot and also hide the knife in some other plot. He thereafter

went to Anup’s room, where he kept his baniyan with blood stains in a

polythene bag and threw it on the roof of the room.

4. The accused entered the plea of not guilty, and claimed trial.

During those proceedings, the prosecution examined several witnesses,

and also relied on documentary evidence. After considering all these, the

Trial Court, by the impugned judgment, convicted the Appellants.

5. Mr. Vivek Sood, and Ms. Saahila Lamba, learned counsel for the

Appellants, argued that the Trial Court’s impugned judgement is not

sustainable. It is contended that the findings with regard to the “last

seen” circumstance had not been proved in this case. It was urged that

the deceased was allegedly taken away by the Appellants around 04.30

P.M. on 10.08.2008. His body was found the next morning around 07:00

AM. According to counsel, for the prosecution to have established the

“last seen” circumstance, the time gap ought to have been so narrow as

to rule out the possibility of anyone other than the accused being the

perpetrator of the crime. In this case, contended both counsel, the canvas

was large since the time gap was nearly 12 hours. Furthermore what

cast serious doubts about the role of the Appellants was that the post-

mortem report fixed the time of death to be about seven days from the

time the procedure was commenced i.e. 12:00 AM on 17.08.2008. This

brought in considerable uncertainty about the time of death. Even if it

was assumed that the death took place between 12 midnight and 01:00

AM in the night intervening 10/11.08.08, the gap between the last seen

time, and the time of death was eight hours. Being daytime, it could not

be said with certainty that the deceased was only with the present

Appellants and none else.

6. It was next submitted that the eyewitnesses testimony about the

crucial aspect regarding last seen circumstance was uninspiring if not

dubious. Here Learned counsel pointed out that PW-1 deposed that the

accused had taken away the deceased, who was his employee, on 10th

or 11th August at 04:30 PM. He was unable to identify who Raju was

and who Sanjay was even though he claimed knowledge about their

identities, and stated that they used to visit the deceased. On the other

hand contended Learned counsel PW-2 gave a completely different version

and stated that the Appellants went to see the deceased around 11 AM

or 12 noon on 10.08.08. He also stated that the police had detained him,

Surender Verma and Avinash for three days and interrogated them.

Commenting on the testimony of PW 5, Learned counsel argued that this

witness claimed to have been the landlord of the accused. The police and

prosecution alleged that both the accused were arrested in his presence.

However he did not support the prosecution version regarding the arrest

of Raju. He also did not support the prosecution version with regard to

disclosure statement made by Raju and the consequent recovery of articles

at his behest. Great stress was laid on the fact that the Trial Court itself

disbelieved the prosecution’s theory regarding Raju’s arrest, in the

impugned judgement, in its observations quoted below:

“35. I am constrained to note here that the prosecution has failed

to prove that the blood stained shirt and gamcha of accused Raju

as well as mobile phone of deceased Saual were recovered at the

instance of accused Raju or that accused Raju made a disclosure

statement Ex.PW14/L, as the only public witness to the same i.e.

PW5 has stated specifically that neither was accused Raju arrested

in his presence nor did he make any disclosure statement and

nor did he effect any recovery in his presence. “

7. It was argued next that the testimony of PW-5 could not be



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relied upon to hold the appellants guilty because he was uncertain as to

when and even the date regarding having seen the accused and the

deceased together. He deposed that two Constables had come on 10.08.2008

to his plot for making enquiries and had showed a photograph in that

regard. Furthermore he claims to have told the police that the person in

the photograph had gone to the plot four or five days prior to that (i.e.

the date of enquiry). This witness also stated that he was called to the

police station on 11 August, 12 to August, 13th August and 15 August

2008. If this statement were correct, the time and date when he saw the

deceased became a matter of speculation. Contending that the Court

would not have been justified in drawing an inference that the witness

saw the deceased four or five days prior to his being called to the police

station(as he deposed in the court), it was urged that he then would have

seen the deceased and accused together on 07.08.08 or 08.08.08, which

could not have led to the finding of his being a witness to the last seen

circumstance.

8. It was next argued that the time as well as the date of death,

could not be established in a manner as to link the Appellants to the

crime. The postmortem report’s determination that death occurred about

7 days before the examination of the body was conducted, brought in

considerable uncertainity even as to the date, and also to the time.

Therefore, the spectrum of time, and also the uncertainity as to when

which witness had seen the accused with the deceased, rendered a

finding that the accused persons were perpetrators of the crime, untenable.

Relying on the decision reported as Ramjee Rai v State of Bihar 2006

(13) SCC 229, counsel argued that the time of death cannot be precisely

determined, and in such cases, it would be unsafe for the Court to

assume the accused’s guilt, and convict him for murder. Learned counsel

also emphasized that PW-5 did not support the prosecution version in

some particulars, and his deposition was at variance with what was

recorded during the investigation. Counsel highlighted the fact that the

witness did not mention the time when he saw the deceased- whether it

was in the morning or the evening. This assumed importance, because

PW-2 deposed to having seen all three together in the morning, whereas

PW-1 stated that he saw them at 04:30 in the evening. Therefore, the

testimony of PW-5 was crucial and corroborative. He was however,

silent as to the time. Having regard to all these circumstances, the Court

ought to set aside the conviction recorded in the impugned judgment.

9. Mr. Sanjay Lao, appearing on behalf of the prosecution, contended

that the last seen evidence stands clearly established in the sense that

both PW-1 and PW-5 deposed that the deceased left in the company of

the appellants. PW-1 was the deceased’s employer, and he also deposed

that both appellants used to visit him; PW-5 was in fact their land lord.

Both of them were independent witnesses, and had no reason to depose

falsely. Both of them stated that they saw the deceased alive in the

company of the appellants on 10.08.2008. The learned counsel submitted

that even if the appellants had parted company with the deceased, it was

for them to give some explanation in their statements under Section 313

Cr.P.C. He further submitted that the fact that they furnished an

explanation which was patently false, such as denying the tenancy under

Sanjay Yadav, would be a circumstance which could be taken against

them.

10. Mr. Lao also submitted that though the recovery of articles

such as mobile phone were not believed, yet the recovery of the knife

was established, and the doctor in his report Ex. PW-3/B stated that the

said knife was probably used to kill the deceased. The Appellants had no

explanation to the blood stained shirt recovered through Ex. PW-14/I,

which was duly established. The deposition of PW-5 was sufficient to

link the accused with these articles; under the circumstances, they owed

a duty to explain these incriminating circumstances, which they could

not, during the trial. Counsel also stated that the confusion about dates,

i.e. whether PW-5 was approached on 10th or 12th August, 2008, is not

material, because many times witnesses are unable to recollect dates or

time, with precision. Moreover, the disclosure statements and recovery

memos exhibited, proved that the articles were seized on 15th August,

2008.

11. Thus, according to the learned counsel for the State, the

circumstance of the deceased being last seen in the company of the

appellants as well as the fact that the death had occurred shortly thereafter

and that his death was not under natural circumstances, coupled with the

factum of recovery of the blood stained clothes, pursuant to the disclosure

statement of Sanjay, and the knife, which was hidden, in a place known

only to them, are clear links which complete the chain of evidence

against the appellants and, therefore, according to him, the Trial Court

has rightly convicted the appellants for the offence under Section 302



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ground for a conclusion consistent with the innocence of the

accused and must show that in all human probability the act

must have been done by the accused.”

Reasoning:

13. The prosecution case is that the deceased Saual’s body was

found at 07:10 AM on 11.08.2008; telephonic information was received

in that regard. It appears that the police were able to identify the name

of the deceased on account of the statement of PW-14, who claims to

have sold a mobile phone to Saual. The postmortem in this case was

conducted much later, on 17.08.2008; the proceedings started at 12:00

AM; the time of death was fixed approximately 7 days before that. Even

if one were to give a wide margin in this case, the time of death possibly

could have been any time between the afternoon and late night. This

brings in an element of uncertainty; the Court would, therefore, have to

go by the broad probability that the murder was committed in the latter

part of 10.08.2008 or early 11.08.2008. At this point, the corroboration

by the witnesses or even the proof of circumstances, such as the last

seen, becomes very crucial. The prosecution relied upon the testimony

of PW-1, Saual’s employer. He deposed having seen the accused on

10.08.2008/11.08.2008. Even if one were to ignore the confusion in date

on account of lapse of memory, this witness claims to have seen the

appellants around 04:30 PM on 10.08.2008 when they went away with

the deceased. He claims to know about the appellants since they were

deceased’s friends. The deceased used to work on the rehri selling

chholey bhature owned by PW-1. PW-2 was the deceased’s co-worker;

he supported PW-1 to the extent that the appellants were friends of the

deceased. However, he did not support the prosecution story at all about

the timing, and stated that that deceased and both the appellants were

seen together on 10.08.2008 around 11.00 am and 12.00 am. The

prosecution furthermore had to confront him with the statement recorded

by him under Section 161, through suggestions and leading questions

submitted by the Court.

14. In view of these circumstances, the testimony of PW-5 about

knowing that the Appellants visited the deceased becomes vital. He

curiously stated having joined the investigation on 10.08.2008 itself when

the police went to him. Like in the case of PW-1, this may be put down

to confusion. However, the subsequent claims of having been called by


and 34 IPC. He contended that the impugned judgment and order on

sentence ought not to be interfered with.

12. The last seen theory is based on the premise that in a case,

having regard to all the other circumstance, the victim’s being last seen

with the accused, if proved through unimpeachable evidence, and all the

circumstances likewise are proved, would lead the court to conclude that

it was only the accused, and no one else who was the perpetrator of the

crime. In State of U.P. v. Satish 2005 CriLJ 1428, the Supreme Court

observed that the last seen theory comes into play where the time-gap

between the point of time when the accused and the deceased were seen

last alive and when the deceased is found dead is so small that possibility

of any person other than the accused being the author of the crime

becomes impossible. The Supreme Court also observed that in the absence

of any other positive evidence to conclude that the accused and the

deceased were last seen together, it would be hazardous to come to a

conclusion of guilt in those cases. A similar observation was made by the

Supreme Court in the case of Ramreddy Rajesh Khanna Reddy v.

State of A.P AIR 2006 SC 1656. In the latter decision, it was held that

in cases of ‘last seen’, the courts should look for some corroboration.

The judgment in State of U.P. v. Satish (supra) was reiterated. In

Kulvinder Singh and Another v. State of Haryana, 2011 (5) SCC

258, decided by the Supreme Court, it was held that:

“16. It is a settled legal proposition that conviction of a person

in an offence is generally based solely on evidence that is either

oral or documentary, but in exceptional circumstances conviction

may also be based solely on circumstantial evidence. The

prosecution has to establish its case beyond reasonable doubt

and cannot derive any strength from the weakness of the defense

put up by the accused. However, a false defense may be called

into aid only to lend assurance to the Court where various links

in the chain of circumstantial evidence are in themselves complete.

The circumstances from which the conclusion of guilt is to be

drawn should be fully established. The same should be of a

conclusive nature and exclude all possible hypothesis except the

one to be proved. Facts so established must be consistent with

the hypothesis of the guilt of the accused and the chain of

evidence must be so complete as not to leave any reasonable


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the police on later dates, such as on 12th, 13th and 15th of August 2008,

cannot be ignored. This is because the witness stated that 4 or 5 days

before he was called to the Police Station, he had seen the appellants

along with the deceased. Now another significant aspect about this witness

is that even though he supported the recoveries allegedly made on the

disclosure statements recorded by the appellant Sanjay, he completely

disclaimed association with the prosecution vis-a-vis the discovery and

the recoveries made by Raju. The latter part was accepted by the Trial

Court which disbelieved the prosecution regarding the recoveries at the

behest of Raju.

15. The testimony of PW-5, in the opinion of the Court, cannot be

conclusive as regards the “last seen” theory. The witness was not clear

as to which date he had seen the accused and the deceased together. If

one were to calculate 4-5 days from 12th/13th August 2008, the conclusion

would be that his observation pertained to a time prior to the occurrence

of the crime. If the Court were to assume that he in fact was joined the

investigation and recorded his statement on 15.08.2008 - when the police

claims to have recorded it - the date when he claims to have seen the

accused and the deceased, would be 10.08.2008. Though this apparently

supports the prosecution, a closer scrutiny would reveal that PW-5 does

not specify any time at all. Unlike PW-1 and PW-2, who were clear

about the time when they allegedly saw all the three together, PW-5’s

testimony is utterly vague and general about the time when he claims to

have seen all the three. This injects considerable uncertainty and casts

doubts on the entire prosecution version of the deceased having been

seen along with the appellants.

16. As discussed previously in this judgments, the last seen theory

kicks in – (if one may use that expression) - only when the prosecution

can establish that the possibility of others being with the accused can be

ruled–out altogether and more crucially, the time-gap between the death

and the last seen circumstance is so narrow as to rule out involvement

of anyone else with certainty. In this case, the time as to when various

witnesses saw the deceased with the accused is confused and conflicting.

One of the prosecution’s star witness, PW-5 did not support it with

regard to the recoveries allegedly made at the behest of Raju. Even the

Trial Court discounted the prosecution version in this regard. The entire

allegation, therefore, hinged on whether PW-5 was in fact a witness to

the last seen circumstance. His silence about the time when he saw the

appellants and the deceased, therefore, is very crucial; the Court is left

guessing as to whether it was in the morning, as deposed to by PW-1

or after 4:30 as testified by PW-2. Moreover, the death in this case -

according to the postmortem report (procedure having been conducted

7 days after the incident) was around 12.00 pm. Having regard to all

these factors and the nature of the uncertainties which have emerged, the

Court is of the opinion that the Trial Court could not have convicted the

appellants for the charges under Section 302/34. The prosecution had

sought to rely upon the motive which was to be deposed by some of

those witnesses. However, this aspect was not supported during the trial.

In a case like the present one where the prosecution relied on circumstantial

evidence, particularly the last seen circumstance, motive assumed a rather

dominant position. The prosecution’s inability to prove it, is a serious

flaw. We further note that some of the prosecution witnesses were

examined and their statement recorded on 12.08.2008. PW-20, the IO

stated that PW-5’s statement was recorded on 15.08.2008. However,

that witness did not support this fact and instead deposed that his statement

was recorded on 12th and that he had been called to the Police Station

on successive dates. Having regard to the further circumstance that the

recoveries claimed to have been made at the behest of Sanjay were from

the roof of the building on a plot adjacent to their premises, which was

owned by PW-5 – a circumstance which by itself cannot implicate the

accused where the basic facts are not proved, in the absence of any

testimony by any independent witness, that cannot be read as an

incriminating fact.

17. As discussed previously, the prosecution’s burden was to prove

each circumstance conclusively and beyond reasonable doubt as well as

the proof which linked all circumstances by the same degree of proof

and establish beyond any doubt that it was the accused alone who could

be the author of the crime and that every hypothesis of his innocence had

to be ruled-out. This is a case where the prosecution cannot be said to

have discharged it. For these reasons, this Court is of the opinion that

the judgment and order impugned in this appeal cannot be sustained. It

is accordingly set-aside. The appeals are consequently allowed. The

Appellants shall be released forthwith.



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C.M. (M)

DR. BIMLA BORA ....PETITIONER

VERSUS

DR. SHAMBHUJI ....RESPONDENT


C.M. (M) NO. : 1452/2009 & DATE OF DECISION: 29.11.2011

C.M. NO. : 18027/2009

Civil Procedue Code, 1908—Order VII Rule 11—Petition

against rejection of application u/o 7 Rule 11—Suit for

damage on account of libel and slander-whether plaint

discloses cause of action—Held—Defendant's

contention that alleged defamatory statement is

protected by an absolute privilege indeed a defense

raised by Defendant—Court precluded from going into

the same while dealing with application u/O 7 R. 11—

Held Cause of action is bundle of facts—Only after

trial it will be known whether averments qualify as

absolute privilege or not Petition Dismissed.

The question which in fact had arisen before the trial court

is as to whether the averments made in the plaint did not

disclose a cause of action. The onus to discharge this issue

was upon the defendant. The arguments have been

aforenoted. The argument that the contents of (i) and (ii)

(the alleged defamatory communication/statements made by

the defendant against the plaintiff are) protected by an

absolute privilege are indeed defences raised by the

defendant which the court while dealing with an application

under Order 7 rule 11 of the Code is precluded from going

into. It is only the averments made in the plaint which have

to be looked into. (Para 10)

The averments made in the present plaint may or may not

be cases of absolute privilege; it is also well settled that

cause of action is always a bundle of facts; it is only after

trial that it will be known whether they will qualify as one or

the other. In these circumstances, it cannot be said that the

plaint discloses no cause of action. In fact the judgments

relied upon by the learned counsel for the petitioner show

that an absolute privilege is not available unless the action

is clearly identified for explaining such an absolute privilege;

complaints or statements made to the police which are not

a part of any judicial proceedings and particularly when the

matters would go to court may thus not be governed by an

absolute privilege; maximum that can be made available

would be a qualified privilege. These being defences; at the

cost of repetition; could not have been looked into at this

stage. (Para 13)

[An Ba]

APPEARANCES:

FOR THE PETITIONER : Mr. Dr. R. Venkataramani, Senior

Advocate with Mr. Surender Kumar

Gupta, Advocate.

FOR THE RESPONDENT : Respondent in person.

CASES REFERRED TO:

1. Vithalbhai (P) Ltd. vs. Union Bank of India; (2005) 4

SCC 315.

2. Saleem Bhasi vs. State of Maharashtra; (2002)1 SCC

557.

3. Rajendra Kumar Sitaram Pande & Ors. vs. Uttam and

Anr. AIR 1999 SC 1028.

4. T.Arivandandam vs. T.V.Satyapal & Anr. (1977) 4 SCC

467.

5. V. Narayana Bhat vs. E.Subhanna Bhat; AIR 1975

Karnataka 162.

6. Bira Gareri vs. Dulhin Somaria; AIR 1962 Patna 229.

747 748Dr. Bimla Bora v. Dr. Shambhuji (Indermeet Kaur, J.)


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7. Madhab Chandra Ghose vs. Nirod Chandra; AIR 1939

Calcutta 477.

8. Rajasthan Lachhman vs. Pyarchand AIR 1939 169.


INDERMEET KAUR, J.

1. Order impugned before this Court is the order dated 28.10.2009

vide which the application filed by the defendant under Order 7 Rule 11

of the Code of Civil Procedure (hereinafter referred to as the Code)

seeking rejection of the plaint had been declined.

2. Record shows that the present suit is a suit for damages on

account of libel and slander; sum of Rs.50,000/- has been claimed.

Plaintiff is a doctor by profession. Defendant is stated to a medical

officer working at the CGHS Dispensary; at the relevant time the plaintiff

was in charge of the CGHS Dispensary at Vivek Vihar. It has been

averred that the defendant was undergoing a departmental penalty pursuant

to which she had been relegated as a junior to the plaintiff which was

not liked by her. On 11.5.1992 by an office order the plaintiff was

directed to deal with the confidential reports (CRs) of various staff

members which included the defendant also. Defendant did not like this

arrangement and she adopted illegal and unfair means to scandalize this

issue. In the plaint three different instances/occasions of defamation have

been alleged by the plaintiff.

(i) On 11.8.1992 defendant had written a letter in the open Dak

to the Additional Director, CGHS East Zone containing the

following words:

“Very recently a photostat copy of the September 8-22,

1983 issue of ‘onlooker’ with the old story about H.M.D.

Shahdara was circulated in my dispensary. Lastly copies

of the same article were circulated to various dispensaries

through C.R.Section of Nirman Bhawan with clear

intention to defame me, engineered by him in all

probability.” .......” I am afraid that if given a chance the

above named doctor will surely write adverse remarks in

my CR to spoil my future career.....“. Further averment

being that the plaintiff by this letter intended to show that


the defendant was a dishonest CMO. (ii) On 7.9.1992 and

08.9.1992 written complaints were addressed by the

defendant to the SHO, police station Vivek Vihar wherein

false and malicious writings were made against the plaintiff.

A part of the English translated extract of the complaint

of 08.9.1992 has been reproduced in the plaint and reads

as under:

“That the plaintiff (Dr.Shambhuji) had threatened in the

dispensary to assault the defendant physically and had

also threatened to kidnap her children.”

Further averment in the plaint being that the plaintiff by way

of this complaint has been indicted as a man of criminal

background which has caused much pain and humiliation to the

plaintiff. The plaintiff also had to undergo investigation which

has been conducted by the Sub-Inspector of the concerned police

station after this complaint has been lodged with him.

(iii) In para 14 of the plaint, it has been averred that the defendant

in the course of meetings with his friend and relatives has maligned

the plaintiff telling them that he has murdered his first wife and

also has a son from his first wife; he has also told the relatives

of the plaintiff to report this matter to his in-laws; this has

gravely injured his reputation and caused pain and humiliation to

him. On these three contentions the present plaint was filed.

3. Defendant in his written statement has raised a preliminary

objection about the maintainability of the suit pursuant to which a

preliminary issue had been framed which reads as under:

“Whether the plaint does not disclose cause of action?OPD

4. This preliminary issue had been answered in favour of the plaintiff

and against the defendant by the impugned order. The application under

order VII Rule 11 of the Code filed by the defendant had been rejected.

This is the grievance of the petitioner.

5. Vehement arguments have been addressed by the learned counsel

for the petitioner. Contention is that the first two allegations as made in

the plaint and noted supra as (i) and (ii) are absolutely privileged and the

question of malice or the said communications being the basis for a claim


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for defamation is not maintainable. Reliance has been placed upon AIR

1999 SC 1028 Rajendra Kumar Sitaram Pande & Ors. Vs. Uttam

and Anr. to substantiate his submission that where a complaint is made

by a person to his superior officer (which in this case was the complaint

dated 11.8.1992); such a complaint would not make out a case for

defamation. Reliance has also been placed upon judgments reported in

AIR 1939 Calcutta 477 Madhab Chandra Ghose Vs. Nirod Chandra;

AIR 1975 Karnataka 162 V. Narayana Bhat Vs. E.Subhanna Bhat;

AIR 1962 Patna 229 Bira Gareri Vs. Dulhin Somaria; AIR 1939 169

Rajasthan Lachhman Vs. Pyarchand to support a submission that the

contents of the defamation alleged in (ii), which are complaints dated

7.9.1982 and 8.9.1982 made to the police officer, are also absolutely

privileged and cannot be the subject matter of a defamatory statement.

Submission being that there is no codified law for a civil liability in a

claim for damages and as such the English common law based on the

principles of justice, equity and good conscience are to be made applicable;

statements made by a person in his complaint to a police officer is an

absolute privilege and as such the contents of these complaints which

have formed the second basis of the defamatory suit against the defendant

falling in this category, no cause of action has been made out in the plaint

on this ground as well. Attention has also been drawn to the text of

Halsbury’s Laws of India as also Gatley Libel and Slander; contention

being that statements made to a Public Authority as to the misconduct

of another are absolute privilege. It is pointed out that the contents of

para 14 of the plaint also show that the averments made in the plaint are

general; these are no specifics in the plaint as to whom the defendant had

made the defamatory statements qua the plaintiff; what was the content

or the text of the said statements which in turn amounted to a defamation

qua the plaintiff. It is pointed out that the provisions of Order VII Rule

11 of the Code get attracted to such kind of malicious suits which should

be nipped in the bud itself. Reliance has been place upon the judgments

reported in (2002)1 SCC 557 Saleem Bhasi Vs. State of Maharashtra;

(2005) 4 SCC 315 Vithalbhai (P) Ltd. Vs. Union Bank of India;

submission being that where the averments made in a plaint as in the

present case make out no case of a cause of action in favour of the

plaintiff; the court must exercise its power to reject the plaint. To advance

this submission reliance has also been placed upon the judgment of the

Apex court reported in (1977) 4 SCC 467 T.Arivandandam Vs.

T.V.Satyapal & Anr. Contention being that where the reading of the

plaint manifestly shows that it is vexatious and meritless; the court should

exercise its power under Order VII Rule 11 of the Code; clever drafting

which has otherwise created no cause of action must be dropped in the

first hearing itself.

6. Arguments have been refuted. The respondent is appearing in

person. His submission is that the question as to whether his averments

in the plaint are instances of an absolute privilege or a qualified privilege

is a defence which is sought to be set up by the defendant and the

defence is not a matter which can be gone into at the time of dealing with

an application under Order VII Rule 11 of the Code; averments made in

the plaint alone being relevant.

7. Record has been perused.

8. The plaint has been detailed supra. There is no doubt to the

proposition that the averment in the plaint alone have to be looked into

while dealing with an application under Order VII Rule 11 of the Code.

Present suit has been filed in May 1993. It is a suit for damages based

on the averments as noted supra claiming damages in the sum of

Rs.50,000/-. Written statement was filed in February 1995. Replication

was filed in the year 2003; issues have been framed on 09.7.2009. They

read as follows:

“1.Whether the plaint does not disclose cause of action? OPD

2.Whether defendant has defamed the plaintiff? Opportunity

3.Whether plaintiff is entitled for damages, if so to what extent?

OPP

4.Relief.”

9. Issue no.1 had been treated as a preliminary issue. There was

admittedly no application under Order 7 Rule 11 of the Code. However

Issue No.1 has been treated as a preliminary issue; which is also the

language of Order VII Rule 11(a) of the Code.

10. The question which in fact had arisen before the trial court is

as to whether the averments made in the plaint did not disclose a cause

of action. The onus to discharge this issue was upon the defendant. The

arguments have been aforenoted. The argument that the contents of (i)



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and (ii) (the alleged defamatory communication/statements made by the

defendant against the plaintiff are) protected by an absolute privilege are

indeed defences raised by the defendant which the court while dealing

with an application under Order 7 rule 11 of the Code is precluded from

going into. It is only the averments made in the plaint which have to be

looked into.

11. There is no dispute to the proposition that privileges are of two

kinds; it may be a case of an absolute privilege or it may be a case of

a qualified privilege; whether the contents of the defamation alleged by

the plaintiff in terms of his claim in para 1 and para 11 supra are covered

by an absolute privilege or by a qualified privilege cannot straightway be

decided or deciphered from a plain reading of the plaint; this would be

mixed question of law and fact.

12. The law on defamation is not a codified law; the legal precedents

cited by the learned counsel for the petitioner are all borrowed propositions

from the criminal law which for the purposes of defamation and malicious

prosecution has been codified under Sections 499 and 500 of the Indian

Penal Code.

13. The averments made in the present plaint may or may not be

cases of absolute privilege; it is also well settled that cause of action is

always a bundle of facts; it is only after trial that it will be known

whether they will qualify as one or the other. In these circumstances, it

cannot be said that the plaint discloses no cause of action. In fact the

judgments relied upon by the learned counsel for the petitioner show that

an absolute privilege is not available unless the action is clearly identified

for explaining such an absolute privilege; complaints or statements made

to the police which are not a part of any judicial proceedings and

particularly when the matters would go to court may thus not be governed

by an absolute privilege; maximum that can be made available would be

a qualified privilege. These being defences; at the cost of repetition; could

not have been looked into at this stage.

14. Impugned order in no manner suffers from any infirmity.

Dismissed.


MAC. A.

BAJAJ ALLIANZ GENERAL ....APPELLANT

INSURANCE CO. LTD.

VERSUS

SOMVEER SINGH & ORS. ....RESPONDENTS

(G.P. MITTAL, J.)

MAC. APPEAL NO. : 580/2011 DATE OF DECISION: 02.12.2011

Motor Vehicles Act, 1988—Appeal impugns order dated

24.03.2011 of the Motor Accidents Claims Tribunal

(MACT)—Appellant denied liability as driver had no

valid licenese at the time of accident and this

constituted a breach of policy condition as proved by

the insurance company—The compensation awarded

under the non-pecuniary head towards inconvenience,

hardship, discomfort frustration, mental stress and

other compensation, towards loss of amenities of life

are challenged as being one and the same. Held—The

award of compensation under the different heads by

the Tribunal was fair in light of the injuries suffered by

the victim and the Court found no reason to interfere

with award.

It is submitted by the learned counsel for the Appellant that

the compensation awarded under the non-pecuniary head

i.e. Rs.1,00,000/- towards inconvenience, hardship,

discomfort, frustration, mental stress and Rs.50,000/- towards

loss of amenities of life was one and the same. It is urged

that since the Appellant proved that there was breach of

conditions of policy as the driver did not hold a valid and

effective licence on the date of accident, the Insurance

Company had no liability to pay and should not have been

made liable to pay and then recover from the owner.



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Reliance is placed on National Insurance Co. Ltd. v.

Parvathneni and Anr., (2009) 8 SCC 785 wherein the

Hon’ble Supreme Court expressed reservations about the

correctness of decisions in National Insurance Co. Ltd. v.

Yellamma, Samundra Devi v. Narendra Kaur, (vide SCC

p. 64, para 16); Oriental Insurance Co. Ltd. v. Brij

Mohan, (vide SCC p. 64, para 13); New India Insurance

Co. v. Darshana Devi, (vide SCC p. 424, para 21). Yet

unless these decisions are reconsidered the same will hold

the fields. (Para 2)

During inquiry before the Tribunal, it was established that

the Respondent No.1 lost complete vision in her left eye and

the compensation under item 5 and 6 in para 12 above

totaling Rs. 1,50,000/- in the circumstances cannot be said

to be excessive. I do not find any ground to interfere with the

award. The appeal is accordingly dismissed. (Para 3)

Important Issue Involved: Unless decisions of the supreme

Court are reconsidered the position of law holds and a

judgement merely expressing reservations about the

correctness of the precedents would not have the effect of

overruling the same.

[Sa Gh]

APPEARANCES:

FOR THE APPELLANT : Ms. Neeraj Sachdeva, Advocate.

FOR THE RESPONDENT : Mr. Manoj Singh, Advocate for R-

1.

CASES REFERRED TO:

1. National Insurance Co. Ltd. vs. Parvathneni and Anr.,

(2009) 8 SCC 785.

2. National Insurance Co. Ltd. vs. Yellamma, Samundra Devi

vs. Narendra Kaur, (vide SCC p. 64, para 16).

3. Oriental Insurance Co. Ltd. vs. Brij Mohan, (vide SCC

p. 64, para 13).

4. New India Insurance Co. vs. Darshana Devi, (vide SCC

p. 424, para 21).

RESULT: Appeal dismissed.

G.P. MITTAL, J. (ORAL)

1. Aggrieved by an award dated 24.03.2011 the Appellant Bajaj

Allianz General Insurance Co. Ltd. has filed this appeal. Respondent No.1

Krishana Chauhan suffered grievous injury in an accident, which took

place on 20.11.2008 at 6:00 AM. Respondent No.1 suffered loss of

complete vision in the left eye. The Tribunal awarded a total compensation

of Rs.2,77,140/- under different heads. Para 12 of the award is extracted

hereunder: -

“12. In view of the above, total compensation head wise payable

to petitioner is as under: -

1. Compensation for pain

& sufferings 30,000/-

2. Compensation for expenses

Incurred on medical treatment. 91,640/-

3. Compensation for Special diet 2,000/-

4. Compensation for conveyance charges 3,500/-

5. Compensation on account of

inconvenience, hardship, discomfort,

disappointment, frustration and

mental stress in life. 1,00,000/-

6. Compensation for loss of enjoyment

of amenities of life & general

damages. 50,000/-

2,77,140/-

2. It is submitted by the learned counsel for the Appellant that the

compensation awarded under the non-pecuniary head i.e. Rs.1,00,000/-

towards inconvenience, hardship, discomfort, frustration, mental stress

and Rs.50,000/- towards loss of amenities of life was one and the same.

It is urged that since the Appellant proved that there was breach of

conditions of policy as the driver did not hold a valid and effective

755 756 Bajaj Allianz General Ins. Co. Ltd. v. Somveer Singh (G.P. Mittal, J.)


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licence on the date of accident, the Insurance Company had no liability

to pay and should not have been made liable to pay and then recover

from the owner. Reliance is placed on National Insurance Co. Ltd. v.

Parvathneni and Anr., (2009) 8 SCC 785 wherein the Hon’ble Supreme

Court expressed reservations about the correctness of decisions in National

Insurance Co. Ltd. v. Yellamma, Samundra Devi v. Narendra Kaur,

(vide SCC p. 64, para 16); Oriental Insurance Co. Ltd. v. Brij Mohan,

(vide SCC p. 64, para 13); New India Insurance Co. v. Darshana

Devi, (vide SCC p. 424, para 21). Yet unless these decisions are

reconsidered the same will hold the fields.

3. During inquiry before the Tribunal, it was established that the

Respondent No.1 lost complete vision in her left eye and the compensation

under item 5 and 6 in para 12 above totaling Rs. 1,50,000/- in the

circumstances cannot be said to be excessive. I do not find any ground

to interfere with the award. The appeal is accordingly dismissed.

4. The award amount deposited with the Registrar General shall be

released to Respondent No.1 along with interest forthwith. The statutory

amount, if any, deposited by the Appellant shall also be released to the

Appellant.


CS (OS)

NIRANJAN LAL GUPTA & ANR. ....PLAINTIFFS

VERSUS

GURMEET SINGH BAWEJA & ORS. ....DEFENDANTS

(V.K. JAIN, J.)

CS (OS) NO. : 2969/2011 DATE OF DECISION: 05.12.2011

Code of Civil Procedure, 1908—Order XXXIX Rule 1&2—

Election dispute—Election for the posts of President

and vice President of Managing Committee of

Defendant No.3 held by postal ballot from members

across the country—Plaintiff No.1 and Plaintiff No.2

contested for President and Vice President

respectively—During counting it was observed that

some ballot papers had been tampered with by erasing

the tick mark placed against the names of plaintiffs

and putting tick mark against the names of Defendants

No. 4&5 on ballot papers—Plaintiffs claimed that these

tampered ballots be read in their favour—Defendant

No.1 proceeded with declaring defendants No. 4&5 as

President and Vice President—Plaintiffs contend that

the rejected ballots be counted in their name—Held,

prima facie it appears that the disputed ballot papers

have been tampered with, but going by the claim of

Plaintiffs, since these votes had been cast in presence

of Plaintiffs, Election officer had no option but to


themselves to be winning candidates—Since the

dispute between the parties is only with respect to

these ballots, which are invalid, vote having been

cast in the presence of plaintiffs, there is no ground

to order re-election at this stage and no case for

interim injunction made out.

Important Issue Involved: Since the disputed votes had

been cast in presence of Plaintiffs, Election Officer had no

option but to reject the same.

[Gi Ka]

APPEARANCES:

FOR THE PETITIONER : Mr. K.T.S. Tulsi, Mr . Raman Kapur,

Sr. Advocates with Mr. Manish

Kumar, Advocate for Plaintiff No.1

Mr. Aman Lekhi, Sr. Advocate with

Mr. Amit Kumar, Advocate for

Plaintiff No. 2.

FOR THE DEFENDANTS : Mr. Rajiv Nayyar, Sr. Advocate Mr.

757 758Niranjan Lal Gupta & Anr. v. Gurmeet Singh Baweja (V.K. Jain, J.)


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Z. Anwer, Advocare for D-3 Mr.

Maninder Singh, Sr. Advocate with

Mr. P.S. Bindra & Mr. Harish

Sharma, Advocate for D-4 & 5.

CASES REFERRED TO:

1. Murray & CO. vs. Ashok Kr. Newatia & Anr. (2000) 2

SCC 367.

2. S.Raghbir Singh Gill vs. S.Gurcharan Singh Tohra &

Ors. 1980 Supp. SSC 53.

RESULT: Application Dismissed.

V.K. JAIN, J.

IA No. 18992/2011 (u/O 39 R.1&2 CPC)

1. Defendant No.3 of All India Motor Transport Congress is stated

to be a body consisting of more than 5000 members, representing more

than 01 lac transport companies and approximately 72 lac truckers, Light

Motor Vehicles, buses, commercial vehicles etc. The Articles of

Association of defendant No.3, which has been registered as a company,

provides for formation of a Managing Committee consisting of not less

than 15 and not more than 121 members to be elected zone-wise by its

members. The members of the Managing Committee elect the President

and Vice-Presidents of the body from amongst themselves, for the tenure

of two years each. For the period 2011-13, plaintiff No.1 Mr. Niranjan

Lal Gupta, defendant No.4 Mr. Bal Malkit Singh and one Mr. Nimesh J.

Patel, all of whom are members of the Managing Committee filed the

nominations for the post of President whereas plaintiff No.2 Mr. Harish

Sabharwal and defendant No.5 Mr. Kultaran Singh Atwal filed nominations

for the post of Vice-President from North Zone. Since Mr. Nimesh J.

Patel withdrew his nomination, only plaintiff No.1 and defendant No.4

remained in the fray for the post of President. The election is held by

postal ballots, the members of the Managing Committee being from all

over India. Accordingly, ballot papers were sent to 109 elected members

of the Managing Committee and 09 former Presidents, who were to cast

vote for the aforesaid post. It is alleged in the plaint that out of total

voters numbering 118, 60 cast their votes in presence of the plaintiffs by

ticking on the ballot paper, since it was not a secret ballot. On 24th

November, 2011 during the process of counting, it was observed that

some ballot papers had been tampered with by erasing/removing the tick

mark placed against the names of the plaintiffs and putting a new tick

mark against the names of defendants No. 4 & 5. It is alleged that the

aforesaid tampering was done after dispatch of ballots by the voters and

before the counting had begun. The plaintiffs lodged protest in this

regard before the counting was complete. Defendant No.1, however,

continued with the process of counting and declared defendants No. 4

& 5 elected to the post of President and Vice-President (North Zone)

respectively. The case of the plaintiffs is that, had the rejected ballot

papers been counted as the votes cast in their favour, they would have

been elected President and Vice-President (North Zone) respectively of

defendant No.3. The plaintiffs have sought a declaration declaring the

election for the posts of President and Vice-President (North Zone) for

the term 2011-13 to be illegal, null and void. They have also sought a

direction to defendant No.1 to recount the votes taking into account the

08 rejected votes and declared them as the successful candidates for the

aforesaid posts. They have also sought an injunction restraining defendants

No. 4 & 5 for representing themselves as President and Vice President

(North Zone) of defendant No.3. The Plaintiffs have also filed IA No.

18992/2011 seeking an interim injunction restraining the defendants No.

4 & 5 from taking charge on the post of President and Vice-President

(North Zone) respectively and staying the operation of the result declared

on 24th November, 2011.

2. The suit has been contested and the application opposed by

defendants No. 3 to 5, though Written Statement is yet to be filed by

them.

3. The dispute between the parties is with respect to 08 postal

ballots for the post of President and 08 postal ballots for the post of Vice

President (North Zone). The ballot box containing all the ballot papers

was opened in the Court on 2nd December, 2011 in presence of the

parties after they had seen the paper seals on it and satisfied themselves

that there was no tampering with the box or the lock put on it. Ballot

papers in question were taken out and were examined in the Court. It

appears to me that on 07 out of 08 ballot papers for the post of President,

initially, the tick mark was put against the name of plaintiff No.1 but later

on that tick mark was erased and another tick mark against the name of



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a secret process in which the voter was precluded from disclosing his

identity and if he did so the ballot cast by him was liable to be rejected/

cancelled. If 60 voters out of 118 cast their vote in presence of the

plaintiffs, as is specifically claimed by them, they by doing so disclosed

their identity to the plaintiffs, which in turn, rendered their ballot liable

to rejection/cancellation. The case of the plaintiffs in para 28 of the plaint

is that the ballot was not a secret ballot and that is why 60 voters had

cast their votes in their presence. This being contrary to the instructions

contained in letter dated 3rd November, 2011 cannot be accepted. Had

it not been a secret ballot, the voters would not have been instructed not

to disclose their identity while casting their votes. It was contended by

the learned Sr. Counsel for the parties that the ballot would be liable to

be cancelled only if the voter writes something or puts any mark other

than tick mark on the ballot paper and since there was neither any writing

nor any other mark on the ballot papers at the time these 60 voters cast

their ballot in favour of the plaintiffs, these ballot papers could not have

been rejected. I, however, do not find any merit in this contention. It is

quite evident from additional instruction (a) that the prohibition is against

disclosure of identify of the voter, writing something or putting any other

mark on the ballot paper being only two of the manner in which the

identity of the voter could possibly be disclosed to the candidates. If the

voters were precluded from disclosing their identity, it is immaterial

whether they disclose it by writing something on the ballot paper or

putting some mark on it or by casting vote in presence of a candidate

or some other manner. Once, it is found that the voter has disclosed his

identity the vote cast by him is liable to be rejected irrespective of the

mode whereby the identity has been disclosed. Therefore, assuming

averments made in the plaint to be correct, the Election Officer had no

option but to reject these ballot papers in case the vote was cast in

presence of the plaintiffs as is claimed by them. If these ballot papers are

excluded from consideration as the Election Officer has done, though on

a different ground, the plaintiffs cannot claim to be the winning candidates

and defendants No. 4 & 5 would be the successful candidates for the

post of President and Vice President (North Zone) respectively. Since the

dispute between the parties is only with respect to these ballot papers,

which, in my view, are invalid, vote having been cast in the presence of

the plaintiff, there is no ground to order re-election at this interim stage

itself.


defendant No.4 was put. It also appears that on all the disputed ballot

papers for the post of Vice President (North Zone) the voter had initially

put tick mark against the name of plaintiff No.2 but later on that tick

mark was erased and another tick mark was put against the name of

defendant No.5. There can be two possibilities with respect to erasing

of the tick marks initially put on these ballot papers and putting of other

tick mark on them. The first possibility and which I feel is more likely

is that someone who had access to the envelopes in which these ballot

papers were sent by the voters, erased the marks which were initially

put on them and put another mark against the name of defendant No.4

on the ballot papers for the post of President and against the name of

defendant No.5 for the post of Vice-President (North Zone). To my

mind, it is unlikely to be a mere coincidence that at least 08 voters who

are casting votes from different places would conduct themselves in an

identical manner by erasing the tick mark initially put by them and

putting another mark against the name of the other candidate. Prima

facie it appears to me that these ballot papers have been tempered with

after they were dispatched by the voters. This obviously would have

been done in connivance with the winning candidates, they being the

only beneficiary of the tempering. The next question, which comes up

for consideration is as to whether, at this stage, the Court should direct

counting of the ballot papers in favour of the plaintiff or should direct

re-election, on account of this tempering.

4. The specific case of the plaintiff is that 60 voters had cast their

votes in their presence, meaning thereby that the tick mark against their

names was put by those voters in their presence. The election for the

post of President and Vice-President (North Zone) is not held up by

show of hands. As per instructions issued by the Election Officer, voter

was required to put the ballot paper in an envelope, flap of the envelope

was to be gum pasted, preferably sealed, that envelope to be put it into

another envelope which was to be sent to the Election Officer. The

plaintiffs themselves have placed on record the letter dated 3rd November,

2011 sent by the Election Officer to all the voters, inclusive two ballot

papers one for the post of President and other for the post of Vice

President (North Zone). One of the instructions given to the voters

requires them not to write or put any other mark on the ballot paper

which may disclose his identity in which case the ballot is liable for

cancellation. It would thus be seen that the polling process was to be


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5. The learned Senior Counsel for the plaintiffs during the course

of arguments relied upon the decision of Supreme Court in S.Raghbir

Singh Gill v. S.Gurcharan Singh Tohra & Ors. 1980 Supp. SSC 53

in support of his contention that the voters are not prohibited from

disclosing their identity even during the process of casting their vote. A

perusal of this decision would show that in election for members to

Council of States, 08 MLAs who were detained under MISA, preferred

to vote through postal ballots. The appellant and respondents No. 1 had

received equal number of first preference votes, which was below the

ascertained quota. The surplus first preference votes were added to the

first preference votes polled by the appellant and he was declared elected.

Respondents No. 2 & 3, who were sitting MLAs belonging to the

opposition party, filed an Election Petition challenging the election of the

appellant and it was alleged that the Returning Officer had tampered with

the postal ballots. When the petition came up for hearing those who had

cast their votes by post appeared as witnesses and were examined. The

witnesses claimed that they had cast only the first preference votes in

favour of respondent No.1 and had not indicated any other preferences.

The Court held that the ballot papers were tampered with and were

improperly received in favour of the appellant and improperly refused to

respondent No.1. Recounting was ordered, in which respondent No.1

was declared elected and the election of the appellant was set aside.

While dismissing the appeal preferred, Supreme Court observed that

secrecy of ballot being is an indispensable adjunct of free and fair election

and ordinarily this secrecy has to be guarded. Noticing that despite

tampering with the ballot papers, the Returning Officer did not reject

them as being invalid, the Court was of the view that if the circumstances

permit and evidence of unquestionable character is available it would be

perfectly legitimate for the Court, in an Election Petition, to ascertain for

whom the vote was cast before it was tampered with and if it can be

ascertained as a valid vote it must be accepted as such. The Court was

of the view that it was the bounden duty of the Returning Officer, in

view of sub rule 2 of Rule 56 of Conduct of Election Rules 1961, to

ascertain the intention of the voter by finding out for whom the vote was

cast and add the vote for the candidate for whom it was meant to be.

It was noted that proviso to sub rule 2 of Rule 56 showed that the ballot

paper could not be rejected merely on the ground that mark indicating

vote was indistinct or made more than once, if the intention that the vote

shall be for a particular candidate clearly appears from the way the paper

is marked. During the course of arguments, it was claimed by the appellant

that the order passed by the High Court violated the mandate of Section

94 of Representation of The People Act which provides that no witness

or other person shall be required to state for whom he had voted. The

Court was of the view that Section 94 only prohibits compelling a witness

to disclose, against his will, as to how he had voted and for whom he

had voted and when questioned in this regard he can refuse to answer

the question without incurring any penalty or forfeiture but if he chooses

to open his lips of his own free will without any direct or indirect

compulsion and waive the privilege nothing prevents him from disclosing

how he voted. This judgment to my mind in the context of the case

before this Court would mean that the voters who cast these disputed

ballot papers, are at liberty, post elections, if they so desire, without any

direct or indirect compulsion on them, to disclose to whom they had

given their vote through these postal ballots. At this stage, there is no

material on record except the claim of the plaintiffs is that as many as

60 voters had cast their votes in their favour in their presence. The

plaintiffs have not filed the affidavits of those 60 voters who according

to them had cast the votes in their favour. Moreover, even if these votes

were cast in favour of the plaintiffs as is claimed by them, in view of

additional instruction (a) to the voters, casting the votes in presence of

the plaintiffs by itself rendered these postal ballots liable to rejection since

by doing so they fail to maintain the secrecy of the polling process and

contravened the instructions issued to them by the Election Officer,

while signing the postal ballots to them. Casting a vote in the presence

of a candidate, being altogether different from disclosing the option, post

election, the decision in the case of Raghbir Singh (supra) does not

apply. Prima facie, the plaintiffs have not able to make out a case for

counting these disputed votes in their favour, for the purpose of deciding

the interim application.

6. During the course of arguments it was submitted by the learned

Senior Counsel for defendants No. 3 to 5 that defendants No. 4 & 5 have

already taken over from the erstwhile incumbents and therefore there can

be no question of restraining them from assuming charge of the office

to which they were elected. This was strongly refuted by the learned

Senior Counsel for the plaintiffs and relying upon the minutes of the



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meeting of Transport Development Council held on 28th November,

2011 wherein the outgoing President Mr.G.R.Shanmugappa has signed

as the President of AIMTC. Their contention was that had defendants

No. 4 & 5 taken charge on 25th November, 2011 itself, the outgoing

President would not have attended the meeting held on 28th November,

2011 and would not have described himself as the President of AIMTC

while signing the minutes of the meeting. This was countered by the

learned Senior Counsel for defendants No. 3 & 4, who stated that the

outgoing President was duly authorized to represent defendant No.3 in

the aforesaid meeting since notice of the meeting was received much

before the results of the election were declared and according to them,

describing himself as the President by Mr. G.R.Shanmugappa was only

inadvertent. They also stated that after defendants No. 4 & 5 had taken

charge of their respective offices, press release was duly issued in this

regard, even before filing of the suit and the concerned banks were also

intimated on 30th November, 2011. I, however, need not go into these

aspects of the matter since I am of the view that the plaintiffs have failed

to make out a prima facie case for counting these disputes ballot papers

in their favour.

The learned Senior Counsel for the plaintiffs referred to decision of

Supreme Court in Murray & CO. v. Ashok Kr. Newatia & Anr.

(2000) 2 SCC 367 where the Court was of the view that making a false

statement on oath constitutes criminal contempt. The contention was that

by filing a forged and fabricated handing over and taking over report

dated 25th November, 2011 the defendants No. 4 & 5 have rendered

themselves liable to punishment for criminal contempt. This aspect, to

my mind, cannot be gone into at this stage. Whether defendants No. 4

& 5 took charge on 25th November, 2011 - is a matter which requires

recording of evidence and no firm view in this regard can be taken at

this stage. I am of the view the whole of the process of the election need

not be set at naught on account of tampering with these disputes ballot

papers since the Election Officer has not taken them into consideration

and they were in any case liable to be rejected.

7. For the reasons given in the preceding paragraphs I find no

ground for grant of any interim order to the plaintiffs. The application is

hereby dismissed.

CS(OS) No. 29692/2011

Written Statement be filed within the prescribed period. Replication,

if any, can be filed within 04 weeks after getting the copy of the Written

Statement.

The parties are directed to appear before the Joint Registrar on 24th

January, 2012 for admission/denial of documents.

List before the Court on 22nd May, 2012 for framing of issues.


WP (C) CM

EX. SI LAKHWINDER SINGH ....PETITIONER

VERSUS

UNION OF INDIA & ORS. ....RESPONDENTS

(ANIL KUMAR & SUDERSHAN KUMAR MISRA, JJ.)

WP (C) NO. : 3515/1997 & DATE OF DECISION: 07.12.2011

CM NO. : 16761-62/2011

Limitation Act, 1963—Section 5—Writ petition dismissed

in default on 03/05/11—Restoration applicant under

Sec. 5 of the Act—Application contended that his

counsel expired in June, 2003 and although son of the

counsel had contacted the petitioner, seeking

instructions, but due to illness, the petitioner residing

in Punjab could not come to Delhi and under these

circumstances when the matter came up for hearing

on 03/05/2011, neither the petitioner nor his counsel

could appear which led to dismissal of writ petition in

default—Despite opportunity the respondents did not

file reply—Held, the applicant has been able to make



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out sufficient cause, so both the applications allowed

and writ petition restored.

[Gi Ka]

APPEARANCES:

FOR THE PETITIONER : Ms. Suresh Kumari, Advocate.

FOR THE RESPONDENT : Ms. Barkha Babbar, Advocate.

CASES REFERRED TO:

1. State of Rajasthan and Another vs. Mohammed Ayub Naz

reported in 2006 I AD (SC) 308.

2. Ex. Constable Akhilesh Kumar vs. The Director General,

BSF & Ors., W.P.(C) No.6577/2002.

3. Union of India vs. Ram Pal reported in 1996 (2) SLR

297.

4. Gauranga Chakraborty vs. State of Tripura reported in

(1989) 3 SCC 314.

RESULT: Application allowed.

ANIL KUMAR, J.

CM Nos.16761 & 16762/2011

These are the applications by the petitioner/applicant seeking setting

aside of order dated 3rd May, 2011 dismissing the writ petition in default

of appearance of petitioner and his counsel and for condonation of delay

of 120 days in filing the application for restoration, under Section 5 of

the Limitation Act. The petitioner/applicant has contended that the writ

petition was filed through his counsel Sh.V.P.Sharma, Advocate, who

had been perusing his case diligently.

The petitioner/applicant asserted that his counsel Sh.V.P.Sharma

expired in June, 2003. Though the son of Sh.V.P.Sharma, Sh.Yogesh

Sharma, had contacted him seeking instructions, however, the petitioner/

applicant could not meet Sh.Yogesh Sharma as he was not keeping well

and, consequently, he could not travel to Delhi, as he is a resident of

Punjab.

In the circumstances, it is asserted that on 3rd May, 2011, when

the matter came up for hearing, neither he nor his counsel could appear

because Sh.V.P.Sharma had already died and he could not engage another

counsel leading to dismissal of the writ petition in default of appearance

of the petitioner/applicant and his counsel.

The petitioner/applicant has contended that non-appearance on his

part is neither intentional or deliberate and is attributable to his ill health

and the demise of his counsel Sh.V.P.Sharma. In the circumstances,

there is sufficient cause as contemplated in law and in the facts and

circumstances for setting aside the order dated 3rd May, 2011 dismissing

the writ petition in default of appearance of the petitioner and his counsel

and for condonation of 120 days delay in fling the application for

restoration.

The notice of the application was issued to the respondents on 31st

October, 2011 and four weeks. time was granted to the respondents to

file the replies. Despite the time given by this Court, replies have not been

filed nor any cogent reason disclosed for not filing the replies.

In the facts and circumstances, the averments made by the petitioner/

applicant for setting aside the order dated 3rd May, 2011 dismissing the

writ petition in default of appearance of the petitioner/applicant and his

counsel and for condonation of 120 days delay in filing the application

for restoration have remained unrebutted.

Considering the entirety of the facts and circumstances, the

petitioner/applicant has been able to make out sufficient cause for setting

aside the order dated 3rd May, 2011 dismissing the writ petition in

default of appearance of the petitioner/applicant and his counsel and for

condonation of 120 days delay in filing the application for restoration.

Therefore, the applications are allowed. Delay of 120 days in filing the

application for restoration is condoned, and the order of dismissal dated

3rd May, 2011 is set aside and the writ petition is restored to its original

number.

W.P.(C) No.3515/1997

1. With the consent of the parties, the matter is taken up for

hearing for disposal. The petitioner had been dismissed from service on

account of his unauthorized absence for 99 days and considering his

767 768EX. SI Lakhwinder Singh v. Union of India & Ors. (Anil Kumar, J.)


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profile. The action was taken under Section 11 of the BSF Act read with

Rule 22 of the BSF Rules, and the trial was dispensed with and the

petitioner was dismissed from service holding that trial was impractical

and further retention of petitioner in service was undesirable.

2. The petitioner has challenged the order of his dismissal on the

ground that no inquiry was held to find out the truthfulness of the

allegation and the competent authority did not apply his mind for coming

to the conclusion that it was inexpedient or impracticable to hold the

inquiry under Section 19A of the BSF Act.

3. According to the petitioner, he remained absent from duty as he

was sick for a long period and after recovery from sickness he contacted

a large number of legal practitioners of his district to take legal assistance

for taking steps against the order passed by the competent authority. The

petitioner contended that he could file the petition challenging the order

of dismissal dated 7th July, 1993 only in the year 1997, as he did not

have enough money for litigation and he also sought condonation of delay

in filing the writ petition. In the circumstances, the petitioner sought

quashing of order dated 7th July, 1993 dismissing the petitioner from

service and he has also sought a declaration that show cause notice dated

29th April, 1993 issued to him before his dismissal was illegal, unjust and

against the principle of natural justice and against the mandatory provision

of law. In the circumstances, the petitioner has sought reinstatement in

the service along with all service benefits.

4. This has not been disputed by the petitioner that show cause

notice dated 29th April, 1993 was issued to him detailing that he has been

absent from duty from 5th November, 1990 to 12th February, 1991 and

from 1st January, 1992 to 22nd April, 1992 without leave. What is

contended is that the show cause notice was not served on him. The

petitioner was asked to show cause as to why his service should not be

terminated as his further retention in service is undesirable.

5. The petitioner did not reply to the show cause notice dated 29th

April, 1993 and therefore, after considering the facts and circumstances

and considering the material which was before the authorities, the order

of dismissal dated 7th July, 1993 was passed.

6. Against the order of the dismissal dated 7th July, 1993, the

petitioner filed an appeal dated 15th October, 1994 to the Director General,


Border Security Force contending that he fell sick on 5th November,

1990 and remained sick up to 12th February, 1991. The petitioner asserted

that he had informed the concerned authority regarding the grant of sick

leave, as he had not fully recovered. He contended that he fell sick again

on 1st January, 1992 and remained sick up till 22nd April, 1992. However,

despite his request he was not granted medical leave and he has been

dismissed from service without holding any enquiry.

7. Regarding the show cause notice dated 29th April, 1993, the

petitioner pleaded that notice was sent to his village address, however,

at that time the petitioner was living at Delhi and therefore, he could not

reply to the show cause notice dated 29th April, 1993. Along with the

appeal, the petitioner did not file anything to show that in April, 1993 he

was not living at address Village & Post Jallowal Colony, Bhogpur Sirwal,

PS Bhogpur, District Jalandhar (Punjab) and was living at Delhi. No

documents were filed to show that the petitioner was sick from 5th

November, 1990 up till 12th February, 1991 and thereafter again from

1st January, 1992 to 22nd April, 1992. The petitioner also did not disclose

the fact that he was not living in District Jalandhar (Punjab) and has been

living at Delhi and that this fact was communicated by the petitioner to

the respondents. The appeal filed by the petitioner against his order of

dismissal was also dismissed.

8. The writ petition is contested by the respondents contending,

inter-alia, various facts pertaining to the conduct of the petitioner which

are enumerated hereinafter as under:-

“a) while posted at Bhandosi Camp during Sept.89, the petitioner

drove away the water tanker unauthorizedly outside the premises.

The petitioner was given verbal warning by Commandant 25 Bn.

BSF.

b) again on 25th Jan 1990 at Bhondsi Range he drove the Govt.

(Tata 7 Ton) unauthorizedly out of Bhondsi Camp. A C.O.I. was

ordered in which the petitioner was found guilty and given a

written warning by the Commandant.

c) On 2nd July, 1990 he unauthorizedly and improperly brought

a girl of ill-repute to his room in SO’s Mess at Chhawla Camp

and kept her for the night. For this act of indiscipline he was

severely reprimanded by the Commandant.


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d) During the absence of the SO w.e.f 05th Nov. 90 Frontier HQ

BSF Jalandhar informed the unit that Sub Inspector Lakhwinder

Singh was arrested by a CRPF Bn. at Jalandhar on 14.11.1990

on the charge of possessing an un-licensed mouser pistol.

However, FTr HQ Jalandhar vide their Sig No.0/4578 dated

28.1.91 informed that the case against SI Lakhwinder Singh was

dropped.

e) During his absence w.e.f 01.01.92 to 22.4.92 Addl.

Commissioner of Police (Central Distt.) Delhi informed vide their

letter dated 15.1.92 that the petitioner was apprehended in a

drunken state from a brothel house at G.B.Road, Delhi. Further

he had abused/misbehaved with a beat Const. of Delhi Police

who was there on duty. A report was lodged vide DD No.80B

dated 01.01.92 U/S 65 of D.P.Act at P.S.Kamla Market, Delhi.

f) In addition to the above, on various occasions the SO remained

absent unauthorizedly from duty which was subsequently

regularized by Comdt 25 Bn. BSF by treating the said period as

‘dies non’.”

9. Regarding dispensing with trial, it has been contended that the

petitioner absented on 5th November, 1990 and reported back on 12th

February, 1991. A Court of Inquiry/ROE was completed and the case

was referred to higher Headquarter to convene a GFSC. The petitioner,

however, absented on 1st January, 1992 to avoid disciplinary proceedings

and reported back to the Unit on 22nd April, 1992. The disciplinary

proceedings were started against him, however, the petitioner again

absented himself and in the circumstances the competent authority was

left with no option except to dismiss the petitioner from service

administratively under the BSF Rules after providing all possible

opportunities to urge anything he had to say against the proposed action.

10. The respondents also relied on a decision dated 21st March,

2006 in W.P.(C) No.6577/2002, ‘Ex. Constable Akhilesh Kumar v.

The Director General, BSF & Ors.’, holding that if a Govt. servant is

absent from duty for long period without intimation to the Govt., the

authorities are entitled to invoke provision of Section 11 (2) of the BSF

Act. It was further held that once a show cause notice is issued regarding

the tentative opinion as required, nothing further was required to be done

as reply to the notice was not given. The observations of the Coordinate

Division Bench in Ex. Constable Akhilesh Kumar (supra), are as under:-

“Being aggrieved of the aforesaid action this writ petition is filed

on which we have heard the learned counsel appearing for the

parties. Counsel for the petitioner has submitted before us that

the petitioner was on leave and he was receiving medical treatment

for a head injury. On going through the record we find that the

petitioner had undergone surgery for Arachanoid Cyst Temporal

Lobe. However after the said period the petitioner joined 30 Bn.

BSF on 27th October, 1995. The petitioner for the said period

i.e. from 1st June, 2000 to 16th July, 2000 was found to be

roaming here and there as stated by his own father. It is also

indicated from the said report submitted by the police that the

petitioner was not interested to rejoin duties. The petitioner belongs

to a disciplined force and therefore it was incumbent upon him

to inform the respondents regarding his absence even if there

was any difficulty for the petitioner to rejoin the duties. He

ignored all notices issued to him by the respondents directing

him to rejoin his duties. Having no other alternative, action has

been taken against the petitioner in accordance with the provision

of Section 11 of the BSF Act. Under similar circumstances

actions taken by the respondents exercising power under the

same provision of law have been upheld. In that regard our

attention is drawn to a Division Bench decision of this Court in

Ex.Ct.Raj Kishan v. Union of India and Others - CWP No.7665/

2001, disposed of on 4th September, 2002. In the said decision

also a similar issue came up for consideration before this Court.

It was held in the said decision that since the show cause notice

issued to the petitioner was in accordance with law and

incorporated the opinion of the Commandant that retention of the

petitioner in service was undesirable and since his trial by security

force court was held to be inexpedient and impracticable and

therefore there is no illegality or irregularity in passing the impugned

order. Similar is the situation in the present case also. Competent

authority in the show cause notice recorded that retention of the

petitioner in service was undesirable and his trial by security

force court was inexpedient and impracticable. Cases of

Gauranga Chakraborty v.State of Tripura reported in (1989)



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3 SCC 314 and Union of India v. Ram Pal reported in 1996

(2) SLR 297 were also referred to wherein it was held that the

power exercised by a Commandant under Section 11(2) read

with Rule 177 was an independent power which had nothing to

do with the power exercisable by a security force court and

once show cause notice was issued in terms thereof, no further

inquiry was required to be held if the delinquent person failed to

reply to the notice and to deny the allegations in the process. Our

attention is also drawn by the counsel appearing for the petitioner

to a medical certificate dated 4th February, 2001 which is placed

on record in support of his contention that the petitioner was

indisposed during the entire period during which he was allegedly

absent unauthorisedly. The said medical certificate is issued by

CMO, Fategarh. On going through the said medical certificate

we find that he was advised rest for the period from 12th July

2000 to 4th February 2001 which is the period during which he

was unauthorisedly absent. The said certificate does not state

that the petitioner had undergone any surgery in the said hospital

of the CMO Fategarh. It was only a certificate stating that he

was suffering from post operative arachanoid cyst with eplileptic

seizure and advised rest for the aforesaid period. The said

operation as already indicated was done in the year 1992 and we

do not find any reason given in the said certificate for advising

rest to the petitioner for such a long period. Except for that

medical certificate no other contemporaneous record is placed

on record to show that he was ever admitted to any hospital nor

any document is placed on record to show and indicate that he

was purchasing medicines or he was even examined as an out

door patient around the same time. We have already referred to

the report of the police from which it is indicated that the petitioner

was not in the hospital for the father of the petitioner would have

definitely given such a statement to the police if it would have

been so. Therefore the aforesaid medical certificate does not

inspire confidence and cannot at all be relied upon. Considering

the facts and circumstances of this case we are of the considered

opinion that ratio of the aforesaid decisions of this Court as also

of the Supreme Court are squarely applicable to the facts and

circumstances of this case as in the present case also the

independent power vested in the Commandant under Section

11(2) read with Rule 177 was exercised after issuing show

cause notice to the petitioner in terms thereof. Therefore we

hold that no further inquiry was required to be held in view of

the fact that the petitioner has failed to file any reply to the show

cause notice and to deny the allegation in the process. In a

recent decision of the Supreme Court in State of Rajasthan

and Another v. Mohammed Ayub Naz reported in 2006 I AD

(SC) 308 the Supreme Court after referring to many other

precedents has held that absenteeism from office for prolong

period of time without prior permission by the Government

servant has become a principal cause of indiscipline which have

greatly affected various Government services. It is also held that

in order to mitigate the rampant absenteeism and willful absence

from service without intimation to the Government the

Government has promulgated a rule that if the government servant

remains willfully absent for a period exceeding one month and if

the charge of willful absence from duty is proved against him,

he may be removed from service. The Supreme Court held that

the order of removal from service passed in the said case was

the only proper punishment to be awarded in view of the fact

that Government servant was absent from duty for long period

without intimation to the Government. Ram Pal (supra) is also

a case where action was taken by the respondents under the

provisions of Section 11(2). In the said decision it was held that

once a show cause notice is issued recording tentative opinion

as required, nothing further was required to be done in the said

case as the employee did not reply to the notice. Therefore it

was held that as there was no denial of the allegation nor was

there any request for holding an inquiry, therefore the action

taken is justified.”

11. This Court has heard the learned counsel for the parties. The

learned counsel for the petitioner, Ms.Suresh Kumari, has primarily

contended that the show cause notice dated 29th April, 1993 was not

served on the respondent as he was not living in District Jalandhar,

Punjab at that time and, therefore, on the basis of the said show cause

notice the petitioner could not have been dismissed. Learned counsel for

the petitioner, however, has not denied that the address given in the show



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cause notice dated 29th April, 1993 is the address of the petitioner in the

record of the respondents. Nothing has been produced by the petitioner

to show that the petitioner had intimated to the respondents that he would

not be available or living at his address at District Jalandhar, Punjab, and

he had shifted to Delhi. In the circumstances, notice sent at the said

address cannot be denied by the petitioner on the ground that at the time

when the show cause notice dated 29th April, 1993 was issued, he was

not living at the said address. The burden was on the petitioner to rebut

that notice could not have been received by him in 1993 at the said

address. Petitioner has not produced anything to show where the petitioner

was living in April/May 1993. The petitioner in the circumstances has

failed to rebut the presumption that the notice sent to him at his address

as given in the official record could not be served on him. The plea of

the petitioner that the show cause notice was not served on him cannot

be accepted and is repelled in the facts and circumstances.

12. Though the petitioner has alleged that he was sick and undergoing

treatment, however, no details have been given by him about his alleged

ailments and which clinic/hospital he was undergoing treatment. Merely

on the bald allegation of the petitioner that he was sick and confined to

the bed, it cannot be inferred that he could not do his duties or was

unable to come and join the duty. No documents such as medical

certificates, medical prescriptions or any other relevant documents have

been produced by the petitioner which would reflect any semblance of

truthfulness of his allegation that he was ill and incapable of joining and

performing his duties. Even on earlier occasions, the petitioner had been

absent without leave. From the facts disclosed by the respondents which

have not been amply denied by the petitioner, it is apparent that he is a

chronic defaulter. The petitioner had allegedly driven away the water

tanker unauthorizedly outside the premises. On 25th January, 1990, he

had again repeated the same act. He was given a written warning. The

petitioner had improperly brought a girl of ill-repute to his room in SO’s

Mess at Chhawla Camp and he had kept her for the night and for this

action he was severely reprimanded by the Commandant. The petitioner

was also arrested at Jalandhar on the charge of possessing an unlicensed

‘mauser’ pistol and he was apprehended in a drunken state from a

brothel house at G.B.Road, Delhi and he had abused/misbehaved with a

beat Constable of Delhi Police who was on duty.

13. In the entirety of the facts and circumstances, if it has been

held that the trial of the petitioner by a Security Force Court is

impracticable and his further retention is undesirable, the same cannot be

faulted in the facts and circumstances. Learned counsel for the petitioner

has also not raised any other ground except that the show cause notice

was not received by the petitioner, as he was not living in April/May,

1993 in District Jalandhar, Punjab but had shifted to Delhi. This fact has

not been established by the petitioner, nor anything has been produced

which would show that the petitioner could not be served with the show

cause notice. In the totality of the facts and circumstances, the petitioner

has failed to make out any perversity or such illegality or irregularity in

the order dated 7th July, 1993 passed by the respondents which would

require any interference by this Court in exercise of its jurisdiction under

Article 226 of the Constitution of India.

14. The writ petition, in the facts and circumstances, is without

any merit, and it is, therefore, dismissed. The parties are, however, left

to bear their own costs.


CRL. APPEAL

CUSTOMS ....APPELLANT

VERSUS

KONAN JEAN ....RESPONDENT

(MUKTA GUPTA, J.)

CRL. APPEAL NO. : 1098/2011 DATE OF DECISION: 12.12.2011

Narcotics Drugs and Psychotropic Substance Act,

1985—Section 21, 22, 23 & 28—Appellant challenged

judgment acquitting Respondent for offences

punishable under Section 21, 22, 23 & 28 of Act—As



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per prosecution, Respondent was apprehended by Air

Custom officer at IGI Airport, New Delhi, on suspicion

of carrying Heroin concealed in 70-75 capsules inside

his body—On permission from learned Duty Magistrate,

Respondent was taken in RML Hospital where he

ejected 77 capsules—After complying with the

provisions of the Act, Respondent was arrested and

on conclusion of investigations, he was charge

sheeted—Learned Special Judge found various

discrepancies in prosecution case and thus acquitted

Respondent—Acquittal challenged urging, no

discrepancy in link evidence which was duly proved

by prosecution beyond reasonable doubt—Held:- A

criminal trial is a quest for truth—The prosecution is

required to prove its case beyond reasonable doubt

and not by way of perfect proof free from all blemishes.

A criminal trial is a quest for truth. The prosecution is

required to prove its case beyond reasonable doubt and not

by way of perfect proof free from all blemishes. Thus, I find

the judgment of the learned Trial Court acquitting the

Respondent as illegal and perverse. The same is set aside.

The Respondent is convicted for offences under Sections

21(c), 23(c) and 28 of the NDPS Act. (Para 21)

Important Issue Involved: A criminal trial is a quest for

truth—The prosecution is required to prove its case byond

reasonable doubt and not by way of perfect proof free from

all blemishes

[Sh Ka]

APPEARANCES:

FOR THE APPELLANT : Mr. P.C. Aggarwal Advocate.

FOR THE RESPONDENT : Mr. S.K. Sethi, Advocate.

CASES REFERRED TO:

1. Ram Singh vs. Central Bureau of Narcotics, 2011 (3)

JCC Narcotics 140.

2. Balbir Kaur vs. State of Punjab AIR 2009 SCC 3036.

3. State of Rajasthan vs. Daul 2009 (4) JCC Narcotics 206.

4. State of Haryana vs. Mai Ram 2009 (3) JCC Narcotics

106.

5. Okwun Udensi vs. Custom 2008 (1) JCC Narcotics 13.

6. Ajmer Singh vs. State of Haryana 2008 (3) JCC Narcotics

188.

7. Siddiqua vs. NCB, 2007 (1) JCC Narcotics 22 Delhi.

8. Gita Lama Tamang vs. State of (G.N.C.T.) of Delhi,

2006 (3) JCC Narcotics 197.

9. M. Prabhulal vs. Assistant Director of DRI, 2003 (3)

JCC 1631 SC.


MUKTA GUPTA, J.

1. The Respondent was acquitted by the Learned Special Judge for

offences punishable under Section 21, 22, 23 and 28 of the Narcotics

Drugs and Psychotropic Substance Act (in short NDPS Act) by the

impugned judgment dated 28th March, 2011. Aggrieved by the impugned

judgment the Appellant preferred the leave to appeal petition which was

granted vide order dated 20th August, 2011. The Learned Special Judge

had directed the Respondent to furnish bond in terms of Section 437-A

Cr.P.C. However, since the Respondent has not been able to furnish the

bond, hence he is in custody. Thus, this appeal was taken up for hearing

by this Court.

2. Briefly the case of the prosecution is that on 13th March, 2007

the Respondent was going to Bangkok by flight No. AI-348 from IGI

Airport New Delhi carrying one black colour stroller hand bag of

ECHOLACE brand with no check-in baggage. The Respondent was

wearing an overcoat during summer season which seemed unusual. Due

to suspicion he was intercepted at the customs counter. On inquiry, he

replied that he was carrying only US $ 2000 and Indian Rs. 450/- and

denied carrying any Narcotics Drugs. Not being satisfied by the reply of

the Respondent, the Air Custom Officer Shri Jarnail Singh, the Complainant

777 778Customs v. Konan Jean (Mukta Gupta, J.)


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decided to examine the hand bag and the person of the Respondent in the

presence of panch witnesses. Notices under Section 102 of the Customs

Act and Section 50 of the NDPS Act were served on the Respondent

apprising him of the legal right available to him. The Respondent did not

want to get himself examined by a Gazetted Officer or a Magistrate and

thus the Air Custom Officer examined him. The overcoat worn by the

Respondent revealed some hand stitches, thus it was further examined.

On thorough examination of the overcoat, one capsule type substance

concealed in the inner side of the overcoat was found and the same was

tested on Ionscan Barringer scanner which tested positive for presence

of Narcotic Drugs i.e. Heroin and THC. On cutting open the capsule

white powdery substance was found wrapped in plastic packing. A small

sample of the same gave positive test for Narcotic drug i.e. heroin. On

further questioning the Respondent admitted that around 70-75 capsules

of similar nature were concealed in his body. Thus he was taken to the

hospital where he ejected 77 capsules from 13th March, 2007 to 14th

March, 2007 on 4 different occasions in the presence of Doctors on duty

and Custom Officers. On 15th March, 2007 in the presence of panch

witnesses the aforesaid capsules were cut open and all contained white

powdery substance which on testing was found to be heroin. Total

weight of the heroin recovered from the Respondent was 14 gms + 1073

gms i.e. 1087 gms. The recovered drug was seized and sealed by the

Customs Officers. Samples were drawn and sent to CRCL which reported

the samples to be positive for presence of heroin. On a complaint being

filed the prosecution witnesses and the accused were examined resulting

in the passing of the impugned order.

3. Learned counsel for the Appellant contends that there has been

due compliance of Section 50 of the NDPS Act and in fact learned

Special Judge also held that the compliance of Section 50 NDPS Act has

been done by the Appellant. It is also stated that Sections 55 and 57 of

the NDPS Act have been duly complied with. Further statements of

witnesses are supported by the voluntary statement of the Respondent

recorded under Section 67 of the NDPS Act which is admissible in

evidence. Reliance in this regard is placed on M. Prabhulal Vs. Assistant

Director of DRI, 2003 (3) JCC 1631 SC and Ram Singh v. Central

Bureau of Narcotics, 2011 (3) JCC Narcotics 140.

4. Learned counsel for the Appellant strenuously contends that

there is no discrepancy in the link evidence as observed by the Learned

Trial Court. It is stated that all the panch witnesses and the Doctors

could not be examined at the trial as they were not available at the given

addresses. However, the statements of these witnesses recorded under

Section 67 of the NDPS Act vide Ex.PW1/U1, PW1/V1 PW3/B, PW3/

D & PW3/E have been proved. Reliance is placed on Ajmer Singh Vs.

State of Haryana 2008 (3) JCC Narcotics 188; State of Haryana Vs.

Mai Ram 2009 (3) JCC Narcotics 106. Since as per Section 53-A of the

NDPS Act these are relevant statements, the contention of the Respondent

that the prosecution failed to prove in whose presence recovery of 77

capsules were effected is untenable. It is contended that the finding of

the Learned Trial Court regarding discrepancy in collection of the samples

and deposition thereof with the CRCL is erroneous. Learned counsel

refers to the testimony of PW1, PW5, PW7 and PW10. Reliance is

placed on Siddiqua Vs. NCB, 2007 (1) JCC Narcotics 22 Delhi, Gita

Lama Tamang v. State of (G.N.C.T.) of Delhi, 2006 (3) JCC Narcotics

197.

5. It is contended that the finding of the Learned Special Court that

there was discrepancy with regard to marking of the samples in the

forwarding letter is erroneous. Three samples were drawn from the first

recovery and marked as A1, A2 and A3. Sample mark A1 was sent to

CRCL along with test-memo and forwarding letter dated 15th March,

2007. As per the receipt obtained from CRCL, sample A1 had been

received. It is stated that inadvertently in the forwarding letter dated 15th

March, 2007 it has been written that sample mark A has been sent

instead of sample mark A1. Similarly, with regard to other set of recovery,

samples mark B1, B2 and B3 were drawn and sample B1 was sent to

CRCL along with test memo and forwarding letter dated 16th March,

2007, however, the same mistake occurred and instead of B1, sample

mark A was mentioned inadvertently in the forwarding letter. It is

contended that since the forwarding letters were prepared on the same

computer at the same time, this error occurred. However from the

testimonies of PW1, PW5, PW7, PW10 and other evidence on record,

it is clear that samples A1 and B1 were sent to CRCL and not the sample

mark A. Reliance is also placed on Balbir Kaur Vs. State of Punjab

AIR 2009 SCC 3036; State of Rajasthan Vs. Daul 2009 (4) JCC

Narcotics 206 and Okwun Udensi Vs. Custom 2008 (1) JCC Narcotics

13.



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6. It is next contended that the Learned Trial Court laid undue

emphasis on the discrepancy in the weight of the samples sent to the

CRCL. The discrepancy in the weight has been duly explained by PW10.

The link evidence has been duly proved by the prosecution beyond

reasonable doubt. It is thus prayed that the impugned judgment be set

aside and the Respondent be convicted and sentenced for the offences

charged.

7. Learned counsel for the Respondent on the other hand contends

that neither the panch witnesses nor the Doctors have been examined

before whom alleged capsules were ejected. The Respondent in his

statement under Section 313 Cr.P.C. and the retraction application dated

28th March, 2007 has stated that he was beaten and tortured by Custom

authorities and was made to sign on blank documents. No MLC of the

Respondent was placed on record to disprove this fact. Further even

PW1 in his statement before the Court has stated that one original notice

under Section 50 of the NDPS Act was prepared, however, thereafter

copy of the same was not prepared. According to the PW1 original

notice was served on the Respondent and was also mentioned in jamatalashi.

He also stated that the notice given along with the complaint is also an

original one. Thus, serving of original notice is also doubtful. No separate

notice has been prepared in compliance of Sections 102 & 103 of the

Customs Act. The recovery of one capsule from the overcoat is doubtful

as the Respondent was not wearing any overcoat at the relevant time.

Further, PW1 in his statement has stated that coat was made of leather

whereas the coat produced in Court was of cloth fabric and not leather.

The alleged contraband recovered from the capsule found in the overcoat

was not sent to the CRCL since sample A1 was not sent. Thus, the sole

testimony of PW1 in this regard cannot be relied upon.

8. It is further contended that even the recovery of 77 capsules

from the Respondent is doubtful. No MLC, X-ray, CT Scan or any

medical document has been placed on record. Even the OPD slip does

not mention the fact that the capsules were ejected before the Customs

Officers. The Doctors in whose presence the capsules were ejected have

not been examined. Further the order of the Learned Metropolitan Magistrate

under Section 103, Customs Act has also not been complied with. The

testimony that samples were drawn from 77 capsules was also doubtful.

The only explanation with the Appellant is that there was a typographical

error which is not possible. Further the test memos were prepared on the

15th March, 2007 and not on 13th March, 2007. They were not deposited

in the malkhana. Samples mark A1, A2 and A3 and remaining case

property were not deposited in the malkhana on 13th March, 2007. PW1

has admitted in his statement before the Court that he neither remembers

the time of taking/drawing nor of depositing the seal affixed on the

samples and the case property. There is no evidence as to who handed

over the samples to PW4. The samples received by the CRCL had mark

A and not mark A1. PW11 has stated that he had not given any permission

or authority for taking sample A1 to the CRCL. Thus, the prosecution

has failed to discharge the onus. Hence, there is no infirmity in the

impugned order. The appeal be thus dismissed.

9. I have heard learned counsel for the parties.

10. In his testimony PW1 Jarnail Singh, Inspector Custom has

stated that on 13th March, 2007 he was on duty in the Departure Hall,

IGI Airport, New Delhi when the Respondent was to go to Bangkok by

Air India Flight No. AI-348. He was carrying one black colour stroller

hand bag of ECHOLACE make. He had no check-in baggage. The

Respondent was wearing an overcoat in summer which raised suspicion.

He was asked whether he was carrying any Indian currency, foreign

currency or narcotic drugs in his baggage or person to which he replied

that he was carrying only US $ 2000 and Indian Rs. 450/- and no

Narcotics Drugs. Since PW1 was not satisfied, he called two independent

witnesses and again asked the accused whether he was carrying any

foreign or Indian currency or any contraband. A notice under Section

102 of the Customs Act being Exhibit PW1/A was served on him and

the Respondent was given an option for search of his baggage and

person in the presence of a Magistrate or a Gazette Officer. Since he

replied in negative, his endorsement was put on the said notice and in the

presence of panch witnesses the stroller baggage was examined but

nothing incriminating was recovered. Thereafter the Respondent was

taken to the preventive room of the customs and a notice under Section

50 NDPS Act was served upon him being Ex. PW1/B and he was

explained that he has a right to be searched in the presence of a Gazette

Officer or a Magistrate, however the Respondent replied in the negative.

The endorsements of the PW1, accused and the panch witnesses have

been duly proved. On examination of the overcoat it was observed that



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the bottom had been stitched by hand and thus, the same was opened.

On opening one capsule was found concealed in the inner layer of the

beige (khaki) overcoat. On examining the capsule with a machine, it gave

positive test for narcotic drug. On cutting of the capsule, white colour

substance was recovered which was tested with the help of field testing

kit which gave positive result for heroin. The same was weighed and

found to be 14 grams. Three samples of 2 grams each were taken from

this. The samples were marked as A1, A2 and A3 and the remaining

substance was kept in a plastic pouch and sealed with the cloth, stitched

and sealed with the custom seal over a paper slip bearing the signatures

of the concerned signatories of the panchnama. The overcoat was also

taken into possession vide memo Ex. PW1/C.

11. PW1 has further stated that the Respondent was asked whether

he had any further substance to which he replied that he had concealed

70-75 more capsules in his body. The currency of US $ 2,000 and Rs.

450/- and the hand bag were returned to the accused, however, the

travelling documents, that is, the air ticket, boarding pass were seized.

Thereafter in view of the disclosure of the Respondent of having concealed

capsules, he was taken to the learned Duty Magistrate and an application

under Section 103 of the Customs Act was filed before the learned Duty

Magistrate being Ex. PW1/G. The learned Duty Magistrate permitted the

Respondent to be admitted in RML hospital for medical assistance, X-ray

and CT Scan. Thereafter the Respondent was admitted to RML hospital

where he remained till 14th March, 2007. The Respondent ejected 29

capsules in the first instance and 28 capsules at the second time on 13th

March, 2007. Thereafter on 14th March, 2007 the Respondent ejected 13

capsules and subsequently 7 capsules. Thus in all 77 capsules were

ejected which were kept in four plastic jars, wrapped with adhesive tapes

and sealed with the seal of “CMO RML HOSP”. Since the Respondent

had not slept for 34 hours, he was feeling sleepy and was thus permitted

to take rest. The information with regard to the recovery of the capsules

from the Respondent was sent to Senior Officer in compliance of Section

57 of the NDPS Act. The seizures on 13th and 14th March besides the

doctors were also witnessed by two other Air Custom Officers, that is,

Rajiv Gupta and Amit Khanna. After the Respondent had taken rest as

requested by him, further proceedings were started on 15th March, 2007

when two panch witnesses were called to witness the proceedings and

were informed about the facts of the case. The hospital issued two

certificates indicating the above said recoveries and a discharge certificate

showing the discharge of the Respondent from the hospital on 14th

March, 2007. The said certificates were exhibited as Ex. PW1/I. In the

presence of the two independent witnesses, four plastic jars were cut

open and 29, 28, 13 and 7 capsules were taken out. The entire proceedings

were signed by the panch witnesses. All the 77 capsules were cut open

with the help of blade and they were found to contain white powdery

substance suspected to be heroin. After homogenising the substance, it

was kept in plastic bag. It weighed 1073 grams and was valued at Rs.

1,03,73,000/-. Three samples of 5 grams each were taken for testing

which were marked as B1, B2 and B3 and rest of the contraband was

also sealed with the customs seal by keeping in double transparent bags.

The recovered white powder, four plastic jars and adhesive tapes were

sealed with the custom seal No. 6. The Superintendent, Customs recorded

the statement of the Respondent on 13th March, 2007 and 15th March,

2007. The Respondent was formally arrested. The report under Section

57 NDPS Act Ex. PW1/O was sent to senior officers. Thereafter the

entire case property, jamatalashi, packing material and personal belongings

were deposited through DR Nos. Ex. PW1/P to Ex.PW1/T respectively.

The goods were received by Shri K.C. Gupta, ACO (SDO) which were

sealed. The samples were sent to CRCL by Shri Rajiv Kumar, ACO. The

statements of panch witnesses were recorded under Section 67 of the

NDPS Act, which were duly exhibited. The test memos were prepared

in triplicate on 15th March, 2007 for the recoveries effected on 13th

March, 2007 and 14th March, 2007. The two tests reports were duly

received and exhibited as Ex.PW10/A and Ex.PW10/B along with their

remnant samples. All these articles were duly exhibited during the evidence

of this witness and marked as Ex. P1 to P36. The statements of the

doctors were also recorded under Section 67 of the NDPS Act.

12. A perusal of the testimony of PW1 and Exhibit PW1/B shows

that the Respondent was duly informed about his legal right to be searched

before a Gazette Officer or a Magistrate, which he declined. Further

notice under Section 102 of Customs Act informing the Respondent

about the fact that if he so desires his search could be conducted before

a Gazette Officer or a Magistrate was also given vide Exhibit PW1/A

which was also declined by him. Further Section 103 of the Customs

Act was also complied with as an application was moved to the learned

Metropolitan Magistrate being Exhibit PW1/G on which the learned Duty



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Magistrate referred to CMO, RML for medical assistance, X-ray, CT

Scan as advised by the doctor and the Respondent was directed to be

produced before the concerned Court after the procedure. Exhibits PW1/

I, PW1/J and PW1/K, which are discharge summary and OPD registration

cards, show that the Respondent ejected 29, 28, 13 and 7 capsules on

13th and 14th March, 2007. Further the testimony of PW1 with regard

to the capsules ejected by the Respondent is corroborated by PW8 Rajiv

Kumar Gupta and PW13 Amit Khanna in whose presence the Respondent

ejected capsules on 14th March, 2007.

13. Learned counsel for the Respondent has strenuously stated that

the samples were kept illegally from 13th March, 2007 by PW1 in his

custody as he did not deposit the same in the safe custody. The sequence

of events as narrated by PW1 clearly shows that on 13th March, 2007

one capsule was recovered, which was tested and the Respondent

disclosed being in possession of 70-75 capsules in his body. An application

was made to the learned Metropolitan Magistrate under Section 103 of

the Customs Act. Thereafter, the Respondent was taken to RML Hospital

from where he was discharged at 3.10 PM on 14th March, 2007 and

taken to IGI Airport. The request of the Respondent for rest being tired

was quite natural and further proceedings could not be carried out on

humanitarian ground on 14th March, 2007. Thus the proceedings were

deferred to 15th March, 2007 when the Respondent got up after taking

rest. The Appellant has satisfactorily explained the sequence of events.

PW1 has stated that the samples and the case property were kept in the

safe custody and nothing has been brought out in cross-examination to

suggest that during this period PW1 tempered with the recovered

substance. Even in the application under Section 103, Customs Act filed

before the learned Metropolitan Magistrate it has been stated that one

capsule has been recovered from the Respondent.

14. The primary reasons for acquittal by the learned Special Judge

were that the samples sent to CRCL were marked as A and not A1 and

B1 in view of the covering letters Exhibit PW4/D and PW4/A and that

the same samples which were duly recovered and sealed were sent have

not been proved by the prosecution i.e. the link evidence has not been

proved. The mentioning of sample A in the covering letter was inadvertent

due to typing mistake and is not an error which goes to the root of the

matter especially in view of the fact that the Respondent has not cross-

examined PW-1 on this aspect. Further a perusal of Exhibits PW4/B, 4/

C, 4/E and 4/F shows that it was the samples marked A1 and B1 which

were sent to the CRCL. This testimony of PW1 is corroborated by

PW10 Shri S.K. Mittal, Chemical Examiner. He states that he had received

sample packets marked A1 and B1 with seals intact. There is no doubt

that there is an error in the forwarding letter which states that sample A

is being sent, however the CRCL form annexed thereto clearly states that

the samples sent to the laboratory were A1 and B1. The finding of the

Learned Trial Court that there is no cogent evidence on record that

sample mark A1 which was drawn at the spot from the substance

recovered on 13th March, 2007 was sent to the CRCL as in the forwarding

letter Ex.PW4/A the sample which was sent to CRCL for analysis is

mentioned as mark A and not mark A1, is perverse.

15. Further the difference in the weights of samples sent to the

CRCL has also been explained by PW10 in his cross-examination. He has

clarified that in test memo Section 1 the weight of the sample is mentioned

as 2 gms whereas in Section 2 it was mentioned as 3.5 gms. The witness

has clarified that Section 1 of the test memo is filled by the ACO whereas

Section 2 is filled in the laboratory and the weight 3.5 gms includes the

weight of the wrapper. Further the gross weight of 2.7 gms mentioned

in the report Exhibit PW10/A is the weight of remnant sample along with

the wrapper. Similarly in his report Exhibit PW10/B the gross weight is

mentioned as 5.5 gms. The witness has clarified that in Section 1of the

test memo the weight of the sample is mentioned as 5 gms and in Section

2 it is mentioned as 7 gms. The witness has stated that Section 1 of the

test memo is filled by the ACO whereas Section 2 is filled in the laboratory

and the weight 7 gms includes the weight of the wrapper. Thus, from

the testimony of this witness, it is clear that there is no difference in the

weights of the samples sent. Thus, the finding of the learned Trial Court

on this count is also erroneous.

16. The learned Trial Court has held that there is no concrete

evidence on record as to who handed over the custody of the representative

sample to PW4 Rajeev Kumar for carrying the same to the CRCL. As

regards the receipt and sending of the samples mark A1 and B1 to the

CRCL is concerned, PW4 Rajeev Kumar has stated that on 15th March,

2007 he received a letter Ex.PW4/A relating to sample A1 authorizing him

to deposit the sample with the CRCL. He was handed over one sealed



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PW1 in his cross-examination has stated that the samples drawn on 13th

March, 2007 were not deposited in the custody of SDO(A) but were

retained by him in his safe custody in the locker, since the accused was

to be taken to the hospital.

18. Learned Trial Court has further observed that the test memos

Ex.PW4/C mentions the date of drawl and date of dispatch of sample as

13th March, 2007 and the testimony of PW1 has failed to explain such

discrepancy. According to the Learned Trial Court if the test memo was

prepared on 15th March, 2007 then the date of dispatch of the sample

could not have been mentioned as 13th March, 2007. A perusal of the

test memo undoubtedly shows that the date of drawl and dispatch of

sample is 13th March, 2007, however, PW4 has stated in his testimony

that he deposited the sample on 15th March, 2007 against receipt. Further

PW4 has not been cross-examined on this count.

19. The finding of the Learned Trial Court that the test memo

Ex.PW4/C was prepared without obtaining Custom seal No.6 from the

custodian of the seal and the same could not be deposited by PW4 Rajeev

Kumar Superintendent at about 12.00 Noon when the seal was taken by

PW1 J.S. Saimpla Inspector Custom after 12.40 PM, is also erroneous.

PW4 Rajeev Kumar, Superintendent has stated that he deposited the

sample with CRCL at about 12 noon. PW1 has stated clearly that the

sample A1 was sent to CRCL in the morning hours of 15th March, 2007.

He has further stated that the sample B1 could not be sent to CRCL on

that day i.e. 15th March, 2007 as the proceedings relating to the aforesaid

recovery continued till late hours in the evening. He has further stated

that on 15th March, 2007 the proceedings started at 9.30 AM and were

concluded at 12.40 PM. On this basis, the learned Trial Court has assumed

that the seal was taken by PW1 after 12.40 PM. From the evidence of

the PW1 it is evident that he took the customs seal No.6 on the 13th and

15th March, 2007 and returned the same on the same day after conclusion

of proceedings.

20. The statements of the PW1 is corroborated by the statement of

the Respondent recorded under Section 67 of the NDPS Act by PW2.

The Respondent has retracted the said statement on 28th March, 2007

and has stated that the same was taken from him under duress, by

beating and torturing physically and mentally. It may be noted that the

Respondent was taken to Hospital immediately after his apprehension and


sample containing representative sample by the Investigating Officer.

Though he initially stated to be by the Superintendent but immediately

clarified it to be by the Investigating Officer. PW4 Rajeev Kumar has also

stated that on 16th March, 2007 he was again authorized by Shri Ravinder

Singh in terms of letter Ex.PW4/D to take the sample for testing to

CRCL. Letter Ex.PW4/D is related to sample B1 though it mentioned

sample A, however in the test memos Ex.PW4/E it is clearly stated that

sample mark B1 was being sent. PW4 Rajeev Kumar had further brought

the register of the SDO(A) which contained the entry No. 3027 dated

16th March, 2007. According to Ex.PW4/H, PW4 received the sample

mark B1 for onward transmission to CRCL. Further PW10 Sh. S.K.Mittal,

Chemical Examiner from the CRCL has stated that he received the sample

mark A1 and B1 which were found to be positive for heroine

(diacetylmorphine) and reports regarding the same were Ex.PW10/A and

PW10/B .

17. Much emphasis has been laid by the Learned Trial Court on the

fact that the representative samples mark A1, A2 and A3 and the remaining

case property were not deposited with the Malkhana on 13th March,

2007 itself and was kept by PW1 in his own custody till 15th March,

2007. It may be noted that the facts of each case have to be looked on

the basis of their peculiar circumstances. Learned Special Judge has held

that PW1 in his cross-examination has stated that Panchnama proceedings

were over on 13th March, 2007 at 6.00 PM and then he reached the

house of Duty Magistrate at 8.30 PM but still he failed to explain why

the case property and the samples were not deposited. PW1 was put this

question and he replied that the accused had concealed some capsules in

his body, due to fever the said capsules may have bursted and due to

shortage of time he could not deposit the above said case property and

samples with the SDO(A) on the same day. Whenever an investigation

is conducted minute by minute explanation of the sequence of events

cannot be given meticulously. Before going to the Learned Metropolitan

Magistrate the PW1 was also required to prepare the application under

Section 103 of the Customs Act besides briefing the counsel and arranging

the vehicle, security etc. The Trial Court could not have assumed and

come to the conclusion that the recording of the statement of the accused

could have been postponed as there was no urgency therein. All that has

to be considered is that even if the samples were in the custody of PW1,

whether he has been able to prove that they were not tempered with.


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admitted therein. A perusal of the OPD cards of the Respondent being

Exhibits PW1/J and PW1/K do not show that the Respondent had received

any injury. Further the statement was recorded on 15th March, 2007 and

the Respondent was produced before the learned ACMM on 15th March,

2007 itself wherein no injury was pointed out by him and the learned

ACMM sent him to judicial custody after getting medically examined.

21. A criminal trial is a quest for truth. The prosecution is required

to prove its case beyond reasonable doubt and not by way of perfect

proof free from all blemishes. Thus, I find the judgment of the learned

Trial Court acquitting the Respondent as illegal and perverse. The same

is set aside. The Respondent is convicted for offences under Sections

21(c), 23(c) and 28 of the NDPS Act.


FAO

JAFFAR ABBAS ....APPELLANT

VERSUS

MOHAN & ORS. ....RESPONDENTS

(G.P. MITTAL, J.)

FAO NO. : 274/1999 DATE OF DECISION: 19.12.2011

Motor Vehicles Act, 1988—Appellant sought

enhancement of compensation in respect of injuries

suffered by him in a motor accident which led to

amputation—Appellant claimed that due to his injuries

his chances of promotion have been hampered and

his compensation was barely enough to cover his

medical expenses. Held—In assessing compensation

during accident cases, a reasonable and

compassionate view must be taken and the court

must be liberal in determining quantum—Compensation

increased and accordingly appeal allowed.

The Appellant was working as a Constable in Delhi Police.

He is working as an Assistant Sub-Inspector now. In the

case of Ward v. James, (1965) 1 All ER 563 (CA) the

Queen’s Bench held as under: -

“(iii) Loss during his shortened span. – Although you

cannot give a man so gravely injured much for his

‘lost years’, you can, however, compensate him for his

loss during his shortened span, that is, during his

expected ‘years of survival’. You can compensate him

for his loss of earnings during that time, and for the

cost of treatment, nursing and attendance. But how

can you compensate him for being rendered a helpless

invalid? He may, owing to brain injury, be rendered

unconscious for the rest of his days, or, owing to a

back injury, be unable to rise from his bed. He has

lost everything that makes life worthwhile. Money is no

good to him. Yet Judges and juries have to do the

best they can and give him what they think is fair. No

wonder they find it well nigh insoluble. They are being

asked to calculate the incalculable. The figure is

bound to be for the most part a conventional sum.

The Judges have worked out a pattern, and they

keep it in line with the changes in the value of

money.” (Para 4)

In a latest judgment of Supreme Court in Yadava Kumar v.

National Insurance Co. Ltd., (2010) 10 SCC 341 it was

observed that while assessing compensation in accident

cases the High Court or the Tribunal must take a reasonable

and compassionate view of things. The Court must be liberal

in determination of quantum of compensation and not

niggardly as in a free country law must value life and limb

on a generous scale. Para 17 of the report is extracted

hereunder: -

“The High Court and the Tribunal must realise that

789 790Jaffar Abbas v. Mohan & Ors. (G.P. Mittal, J.)


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there is a distinction between compensation and

damages. The expression compensation may include

a claim for damages but compensation is more

comprehensive. Normally damages are given for an

injury which is suffered, whereas compensation stands

on a slightly higher footing. It is given for the atonement

of injury caused and the intention behind grant of

compensation is to put back the injured party as far

as possible in the same position, as if the injury has

not taken place, by way of grant of pecuniary relief.

Thus, in the matter of computation of compensation,

the approach will be slightly more broad based than

what is done in the matter of assessment of damages.

At the same time it is true that there cannot be any

rigid or mathematical precision in the matter of

determination of compensation.” (Para 5)

In the case of Raj Kumar v. Ajay Kumar & Anr., (2011) 1

SCC 343, it was held that where a Claimant suffers a

permanent disability as a result of injuries the assessment of

compensation under the head of loss of future earning

would depend upon the effect and impact of his permanent

disability on his earning capacity. Para 13 & 14 of the report

are extracted hereunder: -

“13. Ascertainment of the effect of the permanent

disability on the actual earning capacity involves three

steps. The Tribunal has to first ascertain what activities

the claimant could carry on in spite of the permanent

disability and what he could not do as a result of the

permanent disability (this is also relevant for awarding

compensation under the head of loss of amenities of

life). The second step is to ascertain his avocation,

profession and nature of work before the accident, as

also his age. The third step is to find out whether (i)

the claimant is totally disabled from earning any kind

of livelihood, or (ii) whether in spite of the permanent

disability, the claimant could still effectively carry on

the activities and functions, which he was earlier


carrying on, or (iii) whether he was prevented or

restricted from discharging his previous activities and

functions, but could carry on some other or lesser

scale of activities and functions so that he continues

to earn or can continue to earn his livelihood.

14. For example, if the left hand of a claimant is

amputated, the permanent physical or functional

disablement may be assessed around 60%. If the

claimant was a driver or a carpenter, the actual loss

of earning capacity may virtually be hundred percent,

if he is neither able to drive or do carpentry. On the

other hand, if the claimant was a clerk in government

service, the loss of his left hand may not result in loss

of employment and he may still be continued as a

clerk as he could perform his clerical functions; and in

that event the loss of earning capacity will not be

100% as in the case of a driver or carpenter, nor 60%

which is the actual physical disability, but far less. In

fact, there may not be any need to award any

compensation under the head of ‘loss of future

earnings’, if the claimant continues in government

service, though he may be awarded compensation

under the head of loss of amenities as a consequence

of losing his hand. Sometimes the injured claimant

may be continued in service, but may not be found

suitable for discharging the duties attached to the

post or job which he was earlier holding, on account

of his disability, and may therefore be shifted to some

other suitable but lesser post with lesser emoluments,

in which case there should be a limited award under

the head of loss of future earning capacity, taking

note of the reduced earning capacity.” (Para 6)

Important Issue Involved: In case where a claimant

suffers a permanent disability, the assessment of quantum

of compensation would depend on present and future impact.

[Sa Gh]


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APPEARANCES:

FOR THE PETITIONER : Mr. H.R. Khan Suhel, Advocate. with

Ankit Mishra & Anchit Upadhyay,

Neeraj Singh, Advocate.

FOR THE RESPONDENTS : Mr. Kanwal Chaudhary, Advocate.

CASES REFERRED TO:

1. Raj Kumar vs. Ajay Kumar & Anr., (2011) 1 SCC 343.

2. Yadava Kumar vs. National Insurance Co. Ltd., (2010)

10 SCC 341.

3. Ward vs. James, (1965) 1 All ER 563 (CA).

RESULT: Appeal Allowed.

G. P. MITTAL, J.

1. The Appellant Jaffar Abbas, who was working as a Constable in

Delhi Police seeks enhancement of compensation in respect of the injuries

suffered by him in a motor accident, which took place on 11.06.1981.

The Appellant was getting a salary of Rs. 489.56 paise per month. His

left leg was amputated and he suffered 40% disability in relation to his

left lower limb. He claimed a compensation of Rs. 5,00,000/-. The Motor

Accident Claims Tribunal (the Tribunal) awarded a compensation of Rs.

80,000/-, which is tabulated hereunder: -

Sl. Head of Compensation

No. Compensation granted by the

Tribunal

1. Pain & suffering Rs. 20,000/-

2. For purchase of medicines,

conveyance and special diet Rs. 7,000/-

3. Loss of leave (187 days) Rs. 3,000/-

4. Loss of future earning capacity Rs. 40,000/-

5. Loss of career prospects Rs. 10,000/-

Total Rs. 80,000/-

2. There is no challenge to the finding on the negligence, thus I

have to assess whether the compensation awarded is just and fair.

3. The Tribunal in detail dealt with the injuries suffered by the

Appellant while discussing issue No.2, I would extract relevant portion

of the impugned award hereunder: -

“In support of this claim, petitioner examined himself as PW7

and also examined Doctor from Safdarjung Hospital PW6 and a

witness of service record from his office as PW2. Petitioner in

his evidence has reported that he remained in hospital for about

two months in which period he was operated two times.

Thereafter, another operation was performed on 31.5.85. He

remained on leave for a period of one year. Due to injuries

received by him, he was given light duties. He deposed that he

spent Rs. 60,000/- to Rs. 70,000/- on medicines, conveyance,

special diet etc. It is further deposed that due to this accident,

his promotion has been affected. As he suffered disability to the

extent of 40% as his left foot has been amputated in the hospital.

In cross-examination, he further deposed that in the hospital he

was admitted on 14.6.81 and after the first operation, a skin

grafting operation was performed and this treatment existed

second time. Thereafter, he remained on special leaves without

pay. He admitted that he has not filed the bills of treatment in

Court or any bills of conveyance or special diet.

5. PW6 Dr. Sardar Singh who was a Orthopedic Surgeon in

Safdarjung hospital deposed that he attended on the petitioner as

it was a case of crush injury of left foot. He was operated on

22.6.81 and a gangrene affected fore-foot was amputated. He

was again operated by him on 10.6.85 for a persistent wound

infection. He deposed that now the patient was without forefoot

on the left side. He proved the discharge slip in the hands of Dr.

Vinod Sakhija as PW6/A and various statement papers running in

17 pages as Ex. PW4/1 and Ex. PW6/B. He deposed that the

wound is still persists as a skin is very weak and gave way three

or four months and needs permanent dressing. According to him

this was a case of permanent disability vide certificate issued

from LNJP hospital. Permanent disability is assessed 40%. He



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recommended special diet to the patient after each operation. In

cross-examination he stated that 40% disability was in relation to

the whole body.”

4. The Appellant was working as a Constable in Delhi Police. He

is working as an Assistant Sub-Inspector now. In the case of Ward v.

James, (1965) 1 All ER 563 (CA) the Queen’s Bench held as under: -

“(iii) Loss during his shortened span. – Although you cannot

give a man so gravely injured much for his ‘lost years’, you can,

however, compensate him for his loss during his shortened span,

that is, during his expected ‘years of survival’. You can compensate

him for his loss of earnings during that time, and for the cost

of treatment, nursing and attendance. But how can you

compensate him for being rendered a helpless invalid? He may,

owing to brain injury, be rendered unconscious for the rest of

his days, or, owing to a back injury, be unable to rise from his

bed. He has lost everything that makes life worthwhile. Money

is no good to him. Yet Judges and juries have to do the best they

can and give him what they think is fair. No wonder they find

it well nigh insoluble. They are being asked to calculate the

incalculable. The figure is bound to be for the most part a

conventional sum. The Judges have worked out a pattern, and

they keep it in line with the changes in the value of money.”

5. In a latest judgment of Supreme Court in Yadava Kumar v.

National Insurance Co. Ltd., (2010) 10 SCC 341 it was observed that

while assessing compensation in accident cases the High Court or the

Tribunal must take a reasonable and compassionate view of things. The

Court must be liberal in determination of quantum of compensation and

not niggardly as in a free country law must value life and limb on a

generous scale. Para 17 of the report is extracted hereunder: -

“The High Court and the Tribunal must realise that there is a

distinction between compensation and damages. The expression

compensation may include a claim for damages but compensation

is more comprehensive. Normally damages are given for an injury

which is suffered, whereas compensation stands on a slightly

higher footing. It is given for the atonement of injury caused and

the intention behind grant of compensation is to put back the

injured party as far as possible in the same position, as if the

injury has not taken place, by way of grant of pecuniary relief.

Thus, in the matter of computation of compensation, the approach

will be slightly more broad based than what is done in the matter

of assessment of damages. At the same time it is true that there

cannot be any rigid or mathematical precision in the matter of

determination of compensation.”

6. In the case of Raj Kumar v. Ajay Kumar & Anr., (2011) 1

SCC 343, it was held that where a Claimant suffers a permanent disability

as a result of injuries the assessment of compensation under the head of

loss of future earning would depend upon the effect and impact of his

permanent disability on his earning capacity. Para 13 & 14 of the report

are extracted hereunder: -

“13. Ascertainment of the effect of the permanent disability on

the actual earning capacity involves three steps. The Tribunal

has to first ascertain what activities the claimant could carry on

in spite of the permanent disability and what he could not do as

a result of the permanent disability (this is also relevant for

awarding compensation under the head of loss of amenities of

life). The second step is to ascertain his avocation, profession

and nature of work before the accident, as also his age. The

third step is to find out whether (i) the claimant is totally disabled

from earning any kind of livelihood, or (ii) whether in spite of

the permanent disability, the claimant could still effectively carry

on the activities and functions, which he was earlier carrying on,

or (iii) whether he was prevented or restricted from discharging

his previous activities and functions, but could carry on some

other or lesser scale of activities and functions so that he continues

to earn or can continue to earn his livelihood.

14. For example, if the left hand of a claimant is amputated, the

permanent physical or functional disablement may be assessed

around 60%. If the claimant was a driver or a carpenter, the

actual loss of earning capacity may virtually be hundred percent,

if he is neither able to drive or do carpentry. On the other hand,

if the claimant was a clerk in government service, the loss of his



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left hand may not result in loss of employment and he may still

be continued as a clerk as he could perform his clerical functions;

and in that event the loss of earning capacity will not be 100%

as in the case of a driver or carpenter, nor 60% which is the

actual physical disability, but far less. In fact, there may not be

any need to award any compensation under the head of ‘loss of

future earnings’, if the claimant continues in government service,

though he may be awarded compensation under the head of loss

of amenities as a consequence of losing his hand. Sometimes the

injured claimant may be continued in service, but may not be

found suitable for discharging the duties attached to the post or

job which he was earlier holding, on account of his disability,

and may therefore be shifted to some other suitable but lesser

post with lesser emoluments, in which case there should be a

limited award under the head of loss of future earning capacity,

taking note of the reduced earning capacity.”

7. The Appellant as PW-1 deposed that he remained in the hospital

for about 2 months during which he was operated upon. Second operation

was performed on 31.05.1985. His treatment is still continuing and he

had to take leave for about a year. It is also deposed that he spent Rs.

60,000/- to Rs. 70,000/- on medicines, conveyance and special diet. Due

to this accident, his promotion was affected. PW-2 SI Shiv Dhan Sharma

apart from proving the leave record of the period 1981 to 1986 deposed

that after the accident 3 – 4 promotional tests held by the department

could not be taken by the Appellant on account of the injuries in his left

leg. This is an old case where the accident took place in the year 1981.

No positive evidence was brought on record during inquiry before the

Tribunal as to how his promotion was affected and how much it was

delayed. Though, it was stated during the course of arguments that the

Appellant’s batchmate had long back been promoted as Sub-Inspector

but there is no evidence on record in this regard. It is borne out from

the record that the Appellant’s treatment continued for quite a long time

and PW-2’s testimony that he could not take 3 – 4 promotional tests held

by the department cannot be easily brushed aside. So, I have to make a

guess work that his promotion was delayed say by at least about 5 years

and he suffered financial loss also on account of the same.

8. As stated earlier the Appellant was working as a Constable in

Delhi Police. He cannot drive a motorcycle; he cannot even drive a

bicycle. He cannot run. He will always have difficulty even in walking.

9. The Appellant who was working as a Constable in Delhi Police

and was entitled to reimbursement of medical expenses / medicines obtained

from an authorized hospital. He has not led any evidence nor any bill

placed on record in respect of the treatment which was not paid by his

employer. Still a person cannot preserve all the bills and I would assume

that he spent something on the treatment.

10. In view of the injuries suffered and the treatment/operations

underwent by the Appellant, I would attempt to award the compensation

as tabulated hereunder: -

Sl. Head of Compensation Compensation

No. Compensation granted by granted by

the Tribunal this Court

1. Pain and suffering Rs. 20,000/- Rs. 20,000/-

2. Medicines, conveyance Rs. 7,000/- Rs. 5,000/-

& special diet (medicines)

Rs. 2,000/-

(conveyance)

Rs. 5,000/-

(special diet)

3. Loss of earning capacity Rs. 40,000/- Rs. 40,000/-

because of delayed

promotion

4. Loss of leave (187 days) Rs. 3,000/- Rs. 3,000/-

5. Career prospects Rs. 10,000/- Rs. 10,000/-

6. Disfigurement Rs. 25,000/-

7. Loss of amenities and

expectation in life Rs. 50,000/-

Total Rs. 80,000/- Rs. 1,60,000/-



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11. The enhanced amount of compensation i.e. Rs. 80,000/- shall

carry interest @ 7.5% per annum from the date of filing of the petition

till the realization of the amount. Respondent No.3 New India Assurance

Co. Ltd. is directed to deposit the enhanced compensation within six

weeks. 25% of the enhanced compensation along with proportionate

interest shall be released forthwith. Rest of the amount shall be held in

a Fixed Deposit in UCO Bank, Delhi High Court Branch, New Delhi for

a period of 3 years.

12. The appeal is allowed in above terms.


CM (M)

LAL CHAND PUBLIC CHARITABLE TRUST ....PETITIONER

VERSUS

DELHI WAKF BOARD & ORS. ....RESPONDENTS


CM (M) NO. : 2166/2006 DATE OF DECISION: 19.12.2011

Code of Civil Procedure, 1908—Order XXII Rule 10—

Suit filed by the plaintiff M/s DLF Universal Ltd. aganist

five defendants including respondent no. 1 Delhi Wakf

Board, stating inter alia that the piece of land measuring

1410 Sq. Yards forming part of the land of the petitioner

had been encroached by the respondents—Written



29.01.1983 in its favour and since the decree that

remained unchalllenged the land now was in his

share—Applicant herein namely Lal Chand Public

Charitable Trust filed an application under Order XXII

Rule 10 in 1996 while the suit had been filed in 1982

stating therein that after a settlement deed dated

1989, the MCD became owner of the said land—

Submitted that MCD is not contesting this suit as in

another litigation between the parties it had allowed

the case to be dismissed in default—If case is not

contested it would suffer the same fate—It would

result in jeopardizing its interest as it was lessee in

respect of the said land—Held, Order XXII Rule 10

postulates that suit can be continued by the person

on whom the petitioners interest has devolved which

in this case is MCD and not the Applicant who had

been a lessee since 1963 in the said land and his

status not changed since then.

This submission of the learned counsel for the respondent

has considerable force. It is an admitted fact that the

applicant Lal Chand Public Charitable Trust was a lessee in

the suit premises, the earlier lessor being the plaintiff M/s

DLF Universal Ltd. which had leased out these premises to

the applicant on 31.8.1963. By virtue of the agreement

dated 24.7.1989 entered between the MCD and M/s DLF

Universal Ltd the status of the lessee i.e. the applicant Lal

Chand Public Charitable Trust still remains the same; he

continues to be a lessee; the status of the owner had

changed hands; earlier owner was the plaintiff M/s DLF

Universal; now in terms of the settlement dated 24.7.1989

the MCD has become the new owner. Provisions of Order

XXII Rule 10 of the Code in this scenario cannot come to the

aid of the present applicant as Order XXII Rule 10 of the

Code specifically postulates that the suit can be continued

by the person upon whom the plaintiff’s interest has devolved

which in this case is the MCD and not the present applicant.

There is admittedly no devolution of interest in favour of the

applicant who continues to be a lessee which status has

been given to him since 1963. (Para 7)

799 800 Lal Chand Public Charitable Trust v. Delhi Wakf Board (Indermeet Kaur, J.)


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Important Issue Involved: An application under Order

XXII Rule 10 CPC can be filed only by a person upon

whom the plaintiff’s interest has devolved and not by any

other person including the person who may otherwise have

interest in the property.

[La Ga]

APPEARANCES:

FOR THE PETITIONER : Mr. Arvind Nigam Sr. Advocate with

Ms. Mandeep Kaur, Advocate.

FOR THE RESPONDENT : Mr. Sanjeev Sindhwani, Advocate

for R-1. Mr. Arjun Harkauli Advocate

for R-2. Mr. Umesh Aggarwal,

Advocate for R-6.

CASES REFERRED TO:

1. Amiteshwar Anand vs. Virender Mohan Singh 2006(1)

SCC 148.

2. Dhurandhar Prasad Singh vs. Jai Prakash University &

Ors. (2001) 6 SCC 534.

3. State of Kerala vs. Sridevi JT 2000 (4) SC 391.

RESULT: Dismissed.


1. Order impugned is the order dated 18.8.2006 which is the order

of the appellate court endorsing the finding of the trial court dated

23.9.2004 wherein the application filed by the applicant namely Lal Chand

Public Charitable Trust under Order XXII Rule 10 read with Section 151

of the Code of Civil Procedure had been dismissed. These are two

concurrent findings by the two courts below.

2. At the outset, it is submitted by the learned counsel for the

respondent that this court is sitting in its power of superintendence under

Article 227 of the Constitution of India and unless and until there is a

manifest illegality or gross error which has led to a miscarriage of justice

no interference is called for. It is in this background that the arguments

advanced by the learned counsel of for the parties have been appreciated.

3. The record shows that the present suit has been filed by the

plaintiff M/s DLF Universal Ltd. against five defendants i.e. Delhi Wakf

Board who had been arrayed as defendant no.1 and defendants no.2 to

5 who are private parties. This is a suit for possession. Contention of the

plaintiff is that colony namely Greater Kailash was developed by the

predecessor interest of the plaintiff. A piece of land measuring 1410 sq.

yards forming part of the land of the plaintiff has been encroached upon

by defendants no.2 and 5 through defendant no.1. A decree for possession

of the aforenoted suit property has been prayed for. Written statement

was filed by the defendants. The contention of defendant no.1 is that he

has already got a decree dated 29.01.1983 in his favour qua the suit land;

this decree has remained unchallenged and this land now falls to his

share. Defendants no.2 to 5 have supported the stand of defendant no.1.

4. Present application under Order XXII Rule 10 of the Code has

been filed by the applicant namely Lal Chand Public Charitable Trust.

This application has been filed on 13.9.1996. Suit has been filed on

18.11.1982. By virtue of this application, it has been contended that a

settlement deed dated 24.7.1989 had been arrived at between the MCD

and the DLF Universal Ltd; in terms of this settlement the MCD has

become the owner of this suit land where the applicant i.e. Lal Chand

Public Charitable Trust is a lessee; in this scenario the applicant Lal

Chand Public Charitable Trust has sought prayer for substitution as

plaintiff in place of the present plaintiff; alternate prayer is that Lal Chand

Public Charitable Trust be made a co-plaintiff and the MCD be also

arrayed as a defendant.

5. This contention was hotly contested and has suffered two adverse

orders as noted supra i.e. order dated 23.9.2004 which was the first

order passed by the Civil Judge and subsequent order of the appellate

court dated 18.8.2006 vide which the appellate court had endorsed the

finding of the trial judge dismissing the application. The vehement argument

of the learned counsel for the applicant is that in terms of this settlement

of 24.7.1989 (which was between the DLF Universal Ltd and the MCD)

the right of the applicant has been recognized as a lessee (Clause-I

internal page 3 of the aforenoted settlement); contention being that this

document is an undisputed document; undisputed fact thus being that Lal

Chand Public Charitable Trust is a lessee in the suit property and as such



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his interest being in jeopardy; he has right to be heard in the present case;

he has accordingly made the prayer as noted supra. To support his

submission learned counsel for the petitioner has placed reliance upon a

judgment of the Apex Court reported in 2006(1) SCC 148 Amiteshwar

Anand Vs. Virender Mohan Singh as also another judgment of the

Apex Court reported in (2001) 6 SCC 534 Dhurandhar Prasad Singh

Vs. Jai Prakash University & Ors. that plain language of Rule 10 of

Order 22 does not suggest that leave can be sought by that person alone

upon whom the interest is devolved; contention being that not only the

assigner or the assignee but other persons whose interest has been effected

can file an application under Order 22 Rule 10 of the Code to continue

the suit; submission being that the MCD is not contesting the suit as in

another litigation between the parties it had allowed the case to be dismissed

in default; if this case is not contested and it also suffers the same fate;

the interest of the present petitioner who has been recognized as a lessee

of the MCD will be hazardously effected; even otherwise to save multiplicity

of litigation it would be appropriate that the present petitioner is permitted

to join the proceedings.

6. These contentions have been refuted. Learned counsel for the

respondent has pointed out that the application has been filed under Order

XXII Rule 10 of the Code which necessarily postulates that there must

be an assignment, creation or devolution of interest during the pendency

of the suit pursuant to which the applicant can seek a prayer under the

aforenoted provision of law. Contention being that even as per the

settlement agreement dated 24.7.1989 the MCD is the successor in interest

of the plaintiff and not the applicant, the applicant i.e. Lal Chand Public

Charitable Trust is only a lessee and in fact this status of the applicant

as a lessee has been recognized right from 1963 i.e. even before the filing

of the present suit; status of the applicant i.e. Lal Chand Public Charitable

Trust has since not changed. Thus this provision does not come to his

aid.

7. This submission of the learned counsel for the respondent has

considerable force. It is an admitted fact that the applicant Lal Chand

Public Charitable Trust was a lessee in the suit premises, the earlier

lessor being the plaintiff M/s DLF Universal Ltd. which had leased out

these premises to the applicant on 31.8.1963. By virtue of the agreement

dated 24.7.1989 entered between the MCD and M/s DLF Universal Ltd

the status of the lessee i.e. the applicant Lal Chand Public Charitable

Trust still remains the same; he continues to be a lessee; the status of

the owner had changed hands; earlier owner was the plaintiff M/s DLF

Universal; now in terms of the settlement dated 24.7.1989 the MCD has

become the new owner. Provisions of Order XXII Rule 10 of the Code

in this scenario cannot come to the aid of the present applicant as Order

XXII Rule 10 of the Code specifically postulates that the suit can be

continued by the person upon whom the plaintiff’s interest has devolved

which in this case is the MCD and not the present applicant. There is

admittedly no devolution of interest in favour of the applicant who continues

to be a lessee which status has been given to him since 1963.

8. Even presuming that the second argument of the learned counsel

for the applicant is accepted and the present application under Order

XXII Rule 10 of the Code be treated as an application under Order 1 Rule

10 of the Code, the prayer made cannot be granted to the applicant.

Admittedly the applicant is relying upon a settlement dated 24.7.1989

pursuant to which the status of ownership has been accorded to the

MCD. The present application has been filed on 13.9.1996 i.e. after a

lapse of almost seven years. The contention of the applicant is the reason

for delay is that in this intervening an appeal had been filed which had

reached the Apex Court and was finally disposed of on 06.02.1991. Even

as per his own contention this appeal had been dismissed by the Apex

Court on 06.2.1991. At the cost of repetition this application has been

filed on 13.9.1996 i.e. after a lapse of almost five years even after

06.2.1991. The Apex Court in JT 2000 (4) SC 391 State of Kerala Vs.

Sridevi had observed that although there is no specified period of limitation

for making an application under Order 1 Rule 10 of the Code, if at all

any application is necessary the same should be filed within three years

as is the limitation prescribed under Article 137 of the Limitation Act.

Applying the aforenoted ratio this application is hopelessly bared by time.

9. Applicant on no count deserves any relief. Dismissed.



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ILR (2012) DELHI 805

MAC APP

PANNA LAL & ORS. ....APPELLANT

VERSUS

ANJIT KUMAR JHA & ORS. ....RESPONDENT

(G.P. MITTAL, J.)

MAC APP. NO. : 106/2011 DATE OF DECISION: 22.12.2011

Motor Vehicle Act, 1988—Appellant seeks enhancement

of compensation in respect of deceased's re-

employment and pension—The Tribunal had determined

that only the handicapped Appellant No. 3 was

dependent and not the husband and the son—

Respondent No. 3 claimed that income tax was

incorrectly taken and thus the compensation would

differ. Held—Since the dependent by deceased on

herself was her handicapped daughter, the amount

spent on personal expenses would be less 1/3rd

income instead of 5% was liable to be deducted—

Compensation calculated accordingly—Further, income

tax also deducted—Award calculated. Amount

accordingly.

I agree with the learned counsel for the Appellants that in

the circumstances when the deceased was getting salary of

Rs. 26,795/- per month apart from transport allowance of

Rs. 2160/- per month and a pension of about Rs. 7,000/-

she would not spent 50% of her income towards her personal

living expenses, in view of the fact that the deceased had to

look after a handicapped daughter. The mother would save

the maximum amount of her income and spend it on her

handicapped child. In the circumstances of the case, I am of

the view that one-third of the amount ought to have been

deducted towards her personal expenditure. (Para 5)

The income tax for the assessment year 2010-11 on an

income of Rs. 4,55,515/- would be about 15,000/- though

the deceased was alive till 7th August, i.e. for a period of

four months only in the AY-2010-11. Considering all this, the

liability of tax for eight months in the year 2010-11 and for

nine months in the next year would be about Rs. 25,000/-.

(Para 7)

Important Issue Involved: In case where dependant is

handicapped, personal expenses of deceased would reduce

in lieu of dependant expenditure.

[Sa Gh]

APPEARANCES:

FOR THE PETITIONER : Mr. Manish Maini, Advocate.

FOR THE RESPONDENTS : Mr. L.K. Tyagi, Advocate. For R-3.


G.P. MITTAL, J. (ORAL)

1. The Appellant claims enhancement of compensation for the death

of Smt. Tripta who was re-employed as a teacher in the MCD. The

deceased at the time of the accident was getting a salary of Rs.28,955/

- including Rs. 2160/- per month towards transport allowance. In addition,

the deceased Smt. Tripta was also getting a pension of Rs. 6990/- per

month.

2. The Motor Accident Claims Tribunal (the Tribunal) by the

impugned award dated 08.10.2010 held that only Appellant No.3 Ms.

Ritu was dependant on the deceased as she was handicapped. The husband

and the son were not financially dependants. The Tribunal, therefore,

took the deceased’s net salary as Rs. 26,795/-, deducted 50% towards

personal expenses of the deceased and computed loss of dependency for

the period of 17 months of re-employment as Rs. 2,27,800/-. Thereafter,

the Tribunal went on to add a sum of Rs. 2,52,000/- towards the loss

805 806Panna Lal & Ors. v. Anjit Kumar Jha & Ors. (G.P. Mittal, J.)


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of household services, which would have been rendered by the deceased

after her retirement. A total compensation of Rs. 5,42,300/- was awarded.

3. At the time of hearing of the Appeal a short submission has been

made by the learned counsel for the Appellants. It is submitted that the

deceased had worked as a teacher all her life. Deceased was re-employed

and would not have spent half of the amount which she would be earning

towards her personal expenses, particularly when she had a handicapped

daughter (Appellant No.3).

4. On the other hand, it is urged by the learned counsel for respondent

No.3 Bharti Axa General Insurance Company Limited that while computing

the loss of income, no provision was made for payment of the income

tax.

5. I agree with the learned counsel for the Appellants that in the

circumstances when the deceased was getting salary of Rs. 26,795/- per

month apart from transport allowance of Rs. 2160/- per month and a

pension of about Rs. 7,000/- she would not spent 50% of her income

towards her personal living expenses, in view of the fact that the deceased

had to look after a handicapped daughter. The mother would save the

maximum amount of her income and spend it on her handicapped child.

In the circumstances of the case, I am of the view that one-third of the

amount ought to have been deducted towards her personal expenditure.

6. The deceased would have got a total salary of Rs. 4,55,515/- for

17 months for which she was still to work and was liable to pay income

tax.

7. The income tax for the assessment year 2010-11 on an income

of Rs. 4,55,515/- would be about 15,000/- though the deceased was alive

till 7th August, i.e. for a period of four months only in the AY-2010-11.

Considering all this, the liability of tax for eight months in the year 2010-

11 and for nine months in the next year would be about Rs. 25,000/-.

8. The loss of income for 17 months minus income tax of Rs.

25,000/- comes to Rs. 4,30,000/-. If one-third is deducted towards

personal expenses, the loss of dependency comes to Rs. 2,87,010/-

instead of Rs. 2,27,800/-.

9. The compensation is enhanced by Rs. 60,000/- which shall carry

interest @ 7.5% per annum from 1.12.2010 till the date of payment.

10. Respondent No.3 Insurance Company is directed to deposit the

enhanced amount along with the interest within six weeks with Registrar

General of this Court. On deposit the entire amount shall be converted

into FDR for a period of five years in the name of Appellant No.3.

Appellant No.3 shall be entitled to be paid quarterly interest till the date

of maturity of the FDR.

11. The Appeal is allowed in above terms.

12. Pending application stands disposed of.

ILR (2012) DELHI 808

LPA

PROF. RAM PRAKASH ....APPELLANT

VERSUS

BANGALI SWEET CENTRE ....RESPONDENT

(A.K. SIKRI, ACTING CJ. & RAJIV SAHAI ENDLAW, J.)

LPA NO. : 768/2011 DATE OF DECISION: 22.12.2011

Code of Civil Procedure, 1908—Order XVI—Appellant

in the pending suit filed an application for payment of

rent from October 2008, in terms of the lease deed

before Civil Judge—Which was dismissed. Appeal

preferred against the said order was also dismissed.

However as per the modified order Court directed the

respondent to deposit in Court within one month an

amount calculated at the rate of Rs. 30,000 per month,

from October 2008 till 6th August, 2009. That the said

amount was further directed to be kept in a fixed

deposit and to abide by the final decision of the Court.

807 808Panna Lal & Ors. v. Anjit Kumar Jha & Ors. (G.P. Mittal, J.)


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Respondent preferred a Special Leave Petition, which

was dismissed, however compliance of order dated 6th

August 2009, was extended by two weeks without

prejudice to the right of the parties. Appellant filed

Contempt Case (Civil) No. 789/2009 against respondent

for not complying with the order dated 6th August,

2009. The same was however dismissed in limine on

12th October, 2009. The same was however dismissed

in limine on 12th October, 2009 observing that since

the order dated 6th August, 2009 was in the nature of

direction under Order XVA of the CPC, the remedy of

the appellant was by way of execution and not by way

of contempt. The appellant thereafter applied for

execution of the order dated 6th August, 2009/30th

October, 2009 and it was in fact in pursuance to the

said execution that the amount came to be deposited

as aforesaid by the Respondent. Thereafter the

appellant filed an application being CM No. 15956/2011

in the disposed of Contempt Case (Civil) No. 789/2009

again seeking release of the amount. The said

application was also dismissed by the learned Single

Judge vide order dated 26th August, 2011, again in

view of the direction in the order dated 6th August,

2009 being for deposit of the amount in the Court and

there being no direction for release thereof to the

appellant, which was challenged. Held: When the action

of a party/litigant before the Court is found to be

irrational, illogical and injurious to the others, to not

come to the rescue of a litigant in such a situation

would not be rendering justice for which the Courts

have been set up. Justice is a virtue which transcends

all barriers. Neither the rules of procedure nor

technicalities of law can stand in its way. It is the duty

of the Court, as a policy, to set the wrong right and

not allow the perpetuation of the wrongdoing—

Deposited amount directed to be released immediately.

Though there is merit in the contention of the counsel for

the respondent as to the maintainability of this appeal but

we have wondered whether we, as dispensers of justice to

the consumers thereof, find our hands to be so tied so as

to convert into reality what was said by Charles Dickens in

a work of fiction Oliver Twist that “law is a ass”. We are

constrained to observe that if, we, owing to the shackles

aforesaid do not grant the relief if found to be due to the

appellant, would be doing disservice rather than service. We

are also forced to wonder whether we should always be

guided by logic when human behavior and transactions on

which we are to adjudicate and do justice are not always

logical and are irrational and misguided. When the action of

a party/litigant before the Court is found to be irrational,

illogical and injurious to the others, to not come to the

rescue of a litigant in such a situation would not be rendering

justice for which the Courts have been set up. Justice is a

virtue which transcends all barriers. Neither the rules of

procedure nor technicalities of law can stand in its way. It is

the duty of the Court, as a policy, to set the wrong right and

not allow the perpetuation of the wrongdoing. (Para 17)

Important Issue Involved: Justice is a virtue which

transcends all barriers. Neither the rules of procedure nor

technicalities of law can stand in its way. It is the duty of

the Court, as a policy, to set the wrong right and not allow

the perpetuation of the wrongdoing.

[Sa Gh]

APPEARANCES:

FOR THE APPELLANT : Appellant-in-Person.

FOR THE RESPONDENT : Ms. Neha Jain, Advocate for Mr.

Mohit Gupta, Advocate.

CASES REFFERRED TO:

1. Krishnadevi Malchand Kamathia vs. Bombay

Environmental Action Group (2011) 3 SCC 363.

809 810Prof. Ram Prakash v. Bangali Sweet Centre (Rajiv Sahai Endlaw, J.)


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2. M.S. Grewal vs. Deep Chand Sood (2001) 8 SCC 151.

3. Busching Schmitz Private Ltd. vs. P.T. Menghani (1977)

2 SCC 835.



1. In this intra court appeal, the appellant who appears in person

impugns the order dated 26th August, 2011 of the learned Single Judge

dismissing the application filed by the appellant in Contempt Case (Civil)

No.789/2009 seeking release of the amounts deposited by the respondent

in terms of order dated 6th August, 2009 as modified vide order dated

30th October, 2009 in CM (M) No.703/2009 preferred by the appellant.

2. Notice of the appeal was issued and we have heard the appellant

in person and the counsel for the respondent.

3. The respondent was a tenant under the appellant in a portion of

Premises No.B-48, South Extension Part-1, New Delhi-49 on the terms

and conditions contained in registered Lease Deed dated 1st May, 2007.

The said Lease Deed was for a term from 1st August, 2007 to 31st July,

2010, on rent of Rs. 30,000/- per month from 1st August, 2007 to 31st

July, 2009 and the rent of Rs. 34,500/- per month from 1st August, 2009

to 31st July, 2010.

4. The appellant in or about January, 2009 filed a suit inter alia for

(i) recovery of rent from October, 2008 to January, 2009 amounting to

Rs. 1,20,000/- (ii) recovery of interest thereon of Rs. 4,500/- (iii)

compensation/damages of Rs. 20,000/-, besides costs etc. The respondent

filed a counter claim in the said suit contending inter alia that the respondent

had vide its letter dated 25th June, 2008 intimated to the appellant of its

intention to vacate the premises on 31st July, 2008; that the appellant

however refused to take possession of the premises; that on 24th August,

2008 it was orally mutually agreed that the respondent shall not vacate

the premises and continue to occupy the same till November, 2008 and

vacate the premises on 30th November, 2008; that it was further orally

agreed that the appellant shall adjust the security deposit of Rs. 90,000/

- in monthly rent for the months of September, 2008 to November,

2008; that the appellant however did not take possession on 30th

November, 2008 also; that the respondent was as such not liable to pay

any rent or other charges with respect to the premises from 1st December,

2008; however owing to the appellant having not taken possession, the

respondent has had to incur expenses of securing the premises and

towards electricity and water charges thereof; the respondent thus made

a counter claim for recovery of Rs. 1,72,642/- from the appellant.

5. The appellant, in the aforesaid suit, filed an application for payment

of rent from October, 2008 in terms of the Lease Deed. The said

application came to be dismissed by the Court of the Civil Judge before

whom the suit and the counter claim aforesaid were pending.

6. Aggrieved from the aforesaid order of the Civil Judge, CM (M)

No.703/2009 (supra) was preferred by the appellant in this Court.

7. This Court vide order dated 6th August, 2009 as modified on

30th October, 2009 in CM (M) No.703/2009, observing that the plea of

the respondent of oral agreement in contravention of the registered Lease

Deed (as per which the security deposit was to be refunded only at the

time of vacation of the premises by the respondent) and further observing

that it was highly unlikely that in view of other claims of the appellant

against the respondent, the appellant would have agreed to adjustment of

the security deposit, and in view of the fact that the possession of the

premises was got delivered before this Court on 6th August, 2009,

directed the respondent to deposit in the Court within one month an

amount calculated at the rate of Rs. 30,000/- per month, from October,

2008 till 6th August, 2009. The said amount was further directed to be

kept in a fixed deposit and to abide by the final decision in the suit.

8. The respondent preferred Special Leave Petition No.30950-30953/

2009 to the Apex Court against the orders dated 6th August, 2009/30th

October, 2009 in CM (M) No.703/2009 (supra). The Special Leave Petition

was dismissed vide order dated 14th December, 2009; the time for

compliance of the order dated 6th August, 2009 was however extended

by two weeks without prejudice to the rights of either parties.

9. We are informed that in pursuance thereto, a sum of ‘3,06,000/

- was deposited by the respondent in the Court of the Civil Judge in

December, 2009.

10. At this stage, it may be mentioned that upon the respondent not



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complying with the order dated 6th August, 2009 (supra), the appellant

filed Contempt Case (Civil) No.789/2009 (supra). The same was however

dismissed in limine on 12th October, 2009 observing that since the order

dated 6th August, 2009 was in the nature of direction under Order XVA

of the CPC, the remedy of the appellant was by way of execution and

not by way of contempt and giving liberty to the appellant to take

appropriate proceedings.

11. The appellant thereafter applied for execution of the order dated

6th August, 2009/30th October, 2009 and it was in fact in pursuance to

the said execution that the amount came to be deposited as aforesaid by

the respondent. The Civil Judge however vide order dated 28th May,

2011 refused to release the amount so deposited by the respondent to the

appellant on the ground that this Court had in CM (M) (supra) directed

the amount to be deposited in the Court and subject to decision of the

suit and thus the appellant was not entitled to release of the amount till

the decision of the suit. Aggrieved therefrom the respondent preferred

CM (M) 739/2011 to this Court. The same was however dismissed on

7th July, 2011, again owing to the order dated 6th August, 2009 (supra)

directing the amount to be deposited in the Court and holding that the

appellant was not entitled to release thereof till the decision of the suit.

12. It was thereafter that the appellant filed an application being CM

No.15956/2011 in the disposed of Contempt Case (Civil) No.789/2009

again seeking release of the amount. The said application was also dismissed

by the learned Single Judge vide order dated 26th August, 2011, again

in view of the direction in the order dated 6th August, 2009 (supra) being

for deposit of the amount in the Court and there being no direction for

release thereof to the appellant.

13. It is the aforesaid order which is now under challenge before

us.

14. Needless to state that the aforesaid multiple proceedings are

attributable partly to the fact that the appellant who is 82 years of age,

is pursuing the litigation in person.

15. The only argument of the counsel for the respondent is that this

appeal is not maintainable. It is contended that no intra Court appeal lies

against the dismissal of a contempt petition and would not lie against the

dismissal of an application moved in a dismissed contempt petition.

16. On the contrary the appellant urges that inspite of the clear

provision of the registered Lease Deed, he is without rent provided in the

Lease Deed till the admitted date of vacation of premises before the

Court. He also contends that notwithstanding the direction of this Court

in order dated 6th August, 2009 (supra), the amount deposited by the

respondent in the Court of the Civil Judge was not kept in a fixed deposit

causing further loss to him. He thus seeks a direction for the respondent

to also compensate him for interest etc.

17. Though there is merit in the contention of the counsel for the

respondent as to the maintainability of this appeal but we have wondered

whether we, as dispensers of justice to the consumers thereof, find our

hands to be so tied so as to convert into reality what was said by Charles

Dickens in a work of fiction Oliver Twist that “law is a ass”. We are

constrained to observe that if, we, owing to the shackles aforesaid do not

grant the relief if found to be due to the appellant, would be doing

disservice rather than service. We are also forced to wonder whether we

should always be guided by logic when human behavior and transactions

on which we are to adjudicate and do justice are not always logical and

are irrational and misguided. When the action of a party/litigant before the

Court is found to be irrational, illogical and injurious to the others, to not

come to the rescue of a litigant in such a situation would not be rendering

justice for which the Courts have been set up. Justice is a virtue which

transcends all barriers. Neither the rules of procedure nor technicalities

of law can stand in its way. It is the duty of the Court, as a policy, to

set the wrong right and not allow the perpetuation of the wrongdoing.

18. The Supreme Court in M.S. Grewal v. Deep Chand Sood

(2001) 8 SCC 151 noticed that the judicial attitude has taken a shift from

the old draconian concept and the traditional jurisprudential system –

affectation of the people has been taken note of rather seriously and the

judicial concern thus stands on a footing to provide relief to an individual

when needed. It was held that Law Courts will lose their efficacy if they

cannot possibly respond to the needs of the society – technicalities there

might be many but the justice oriented approach ought not to be thwarted

on the basis of such technicality since technicality cannot and ought not

to outweigh the course of justice. Much earlier, Krishna Iyer, J. in



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Busching Schmitz Private Ltd. v. P.T. Menghani (1977) 2 SCC 835

held that the principle of unconscionability clothes the Court with the

power to prevent its process being rendered a parody. Recently also, in

Krishnadevi Malchand Kamathia v. Bombay Environmental Action

Group (2011) 3 SCC 363, the Supreme Court observed that justice is

only blind or blindfolded to the extent necessary to hold its scales evenly;

it is not, and must never be allowed, to become blind to the reality of

the situation, lamentable though that situation may be.

19. This Court in the order dated 6th August, 2009/30th October,

2009 was concerned only with an interim direction as to payment and

not with the release thereof; the matter was at large before the learned

Civil Judge. The said direction was made owing to the unambiguous

provision of the registered Lease Deed. The emphasis at that time was

to make the respondent cough up the money.

20. We have today enquired from the counsel for the respondent

whether the respondent has any order of attachment before judgment in

the counter claim preferred against the appellant. The counsel for the

respondent has fairly stated that no such order has been sought. It is not

in dispute that the possession of the premises was delivered to the

appellant before the Court only on 6th August, 2009. We fail to see as

to why the appellant who had taken care to register the transaction of

lease should not be entitled to the benefit thereof and/or to the rent

thereunder till the date of actual vacation of the premises. The counter

claim of the respondent against the appellant for having not taken

possession of the premises earlier etc. is yet to established. This Court

has in order dated 6th August, 2009 (supra) already observed that the

said plea of the respondent being contrary to the registered document,

the onus on the respondent to prove the same is heavy. If the respondent

succeeds in discharging the said onus and becomes liable to recovery of

any money from the appellant, it can always recover the same. However

for the said reason we cannot deprive the appellant of the monies due to

him under the registered Lease Deed and which were got deposited in the

Court. We may also notice that Order XVA was incorporated in the Civil

Procedure Code in Delhi for doing this kind of justice only and it was

for this reason only that the contempt petition filed by the appellant was

dismissed.

21. We therefore find the opposition by the respondent before the

Court of the Civil Judge to the release of the said amount to the appellant

to be irrational and injurious to the appellant and unconscionable and

consider it our imperative duty to direct release of the said amount to the

appellant.

22. As far as the grievance of the appellant of the amount being not

kept in fixed deposit as directed is concerned, the appellant is given

liberty to agitate the same before the Court which was directed to keep

the amount in a fixed deposit. Further, in these proceedings we cannot

adjudicate the claims of the appellant against the respondent for further

interest etc. The appellant shall have liberty to agitate the same before the

appropriate fora / Court.

23. The appeal is therefore allowed, the Court of the Civil Judge,

Delhi before whom the amount aforesaid were deposited, to release the

amount together with interest if any accrued thereon to the appellant

forthwith.

24. In the facts aforesaid, no order as to costs.


INDIAN LAW REPORTS

DELHI SERIES

2012(Containing cases determined by the High Court of Delhi)

GENERAL INDEX VOLUME-1

EDITOR

MR. A.S. YADAVREGISTRAR (VIGILANCE)

CO-EDITORS

MS. NEENA BANSAL KRISHNA

(ADDITIONAL DISTRICT & SESSIONS JUDGES)

REPORTERS

MR. CHANDER SHEKHAR MS. ANU BAGAI

MR. TALWANT SINGH MR. SANJOY GHOSE

MR. GIRISH KATHPALIA MR. K. PARMESHWAR

MR. VINAY KUMAR GUPTA (ADVOCATES)

MS. SHALINDER KAUR MR. KESHAV K. BHATI

MR. V.K. BANSAL JOINT REGISTRAR

MR. L.K. GAUR

MR. GURDEEP SINGH

MS. ADITI CHAUDHARY

MR. ARUN BHARDWAJ

(ADDITIONAL DISTRICT

& SESSIONS JUDGES)

PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI,

BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054.

INDIAN LAW REPORTS

DELHI SERIES

2012 (1)

VOLUME INDEX

LIST OF HON’BLE JUDGES OF DELHI HIGH COURT

During January-February, 2012

1. Hon’ble Mr. Justice A.K. Sikri, Acting Chief Justice

2. Hon’ble Mr. Justice Sanjay Kishan Kaul

3. Hon’ble Mr. Justice Badar Durrez Ahmed

4. Hon’ble Mr. Justice Pradeep Nandrajog

5. Hon’ble Mr. Justice Anil Kumar

6. Hon’ble Ms. Justice Gita Mittal

7. Hon’ble Mr. Justice S. Ravindra Bhat

8. Hon’ble Mr. Justice Sanjiv Khanna

9. Hon’ble Ms. Justice Reva Khetrapal

10. Hon’ble Mr. Justice P.K. Bhasin

11. Hon’ble Mr. Justice Kailash Gambhir

12. Hon’ble Mr. Justice G.S. Sistani

13. Hon’ble Dr. Justice S. Muralidhar

14. Hon’ble Ms. Justice Hima Kohli

15. Hon’ble Mr. Justice Vipin Sanghi

16. Hon’ble Mr. Justice Sudershan Kumar Misra

17. Hon’ble Ms. Justice Veena Birbal

18. Hon’ble Mr. Justice Siddharth Mridul

19. Hon’ble Mr. Justice Manmohan

20. Hon’ble Mr. Justice V.K. Shali

21. Hon’ble Mr. Justice Manmohan Singh

22. Hon’ble Mr. Justice Rajiv Sahai Endlaw

23. Hon’ble Mr. Justice J.R. Midha

24. Hon’ble Mr. Justice Rajiv Shakdher

25. Hon’ble Mr. Justice Sunil Gaur

26. Hon’ble Mr. Justice Suresh Kait

27. Hon’ble Mr. Justice Valmiki J. Mehta

28. Hon’ble Mr. Justice V.K. Jain

29. Hon’ble Ms. Justice Indermeet Kaur

30. Hon’ble Mr. Justice A.K. Pathak

31. Hon’ble Ms. Justice Mukta Gupta

32. Hon’ble Mr. Justice G.P. Mittal

33. Hon’ble Mr. Justice M.L. Mehta

34. Hon’ble Mr. Justice R.V. Easwar

35. Hon’ble Ms. Justice Pratibha Rani

36. Hon’ble Ms. Justice S.P. Garg

LAW REPORTING COUNCIL

DELHI HIGH COURT

1. Hon’ble Mr. Justice S. Ravindra Bhat Chairman

2. Hon’ble Mr. Justice Sunil Gaur Member

3. Hon’ble Ms. Justice Pratibha Rani Member

4. Mr. V.P. Singh, Senior Advocate Member

5. Mr. Maninder Singh, Senior Advocate Member

6. Mr. Mukesh Anand, Senior Counsel of Member

Union Govt. Attached to the High Court

7. Mr. V.P. Vaish, Registrar General Secretary

CONTENTS

VOLUME-1, PART-II

JANUARY AND FEBRUARY, 2012

Pages

1. Comparative Table ........................................................... (i-iv)

3. Nominal Index .................................................................... 1-4

4. Subject Index .................................................................. 1-80

5. Case Law....................................................................... 1-816

(ii)

(i)

COMPARATIVE TABLE

ILR (DS) 2012 (I) = OTHER JOURNAL

JANUARY AND FEBRUARY

Page No. Journal Name Page No. Journal Name Page No.

1 2011 (6) R.A.J. 2381 2011 (3) Arb. LR 53840 No Equivalent46 2011 (8) AD (DELHI) 22773 No Equivalent90 No Equivalent103 2011 (8) AD (DELHI) 196103 2011 (126) DRJ 52110 No Equivalent121 No Equivalent127 No Equivalent140 No Equivalent156 No Equivalent168 No Equivalent180 No Equivalent194 No Equivalent211 No Equivalent224 No Equivalent259 No Equivalent271 No Equivalent299 No Equivalent305 No Equivalent340 No Equivalent347 No Equivalent355 No Equivalent363 No Equivalent378 No Equivalent382 No Equivalent388 No Equivalent398 No Equivalent406 No Equivalent412 No Equivalent442 No Equivalent453 2011 (9) AD (Delhi) 369460 No Equivalent473 2011 (184) DLT 438490 No Equivalent527 No Equivalent

538 2011 (9) AD (DELHI) 340541 2011 (6) R.A.J. 528541 2011 (4) Arb. LR 402548 2012 (1) R.A.J. 349548 2011 (9) AD (Delhi) 105548 2011 (184) DLT 332558 2011 (184) DLT 103566 2011 (184) DLT 543578 2011 (10) AD (Delhi) 398598 No Equivalent607 2012 (1) AD (Delhi) 166617 No Equivalent620 2011 (10) AD (Delhi) 362620 2012 (186) DLT 17638 No Equivalent645 No Equivalent652 2011 (184) DLT 305652 2011 (126) DRJ 333652 2011 (10) AD (DELHI) 296681 2011 (185) DLT 662681 2012 (1) JCC 236684 2011 (185) DLT 673693 2011 (10) AD (Delhi) 493693 2012 (1) JCC 26699 2011 (185) DLT 419705 No Equivalent711 2012 (1) JCC 1 (Narcotics)711 2012 (275) ELT 513728 2012 (127) DRJ 16736 No Equivalent747 2011 (185) DLT 497754 No Equivalent757 No Equivalent766 No Equivalent776 2012 (1) AD (DELHI) 179776 2012 (186) DLT 379776 2012 (127) DRJ 61776 2012 (1) JCC 12 (Narcotics)789 No Equivalent799 2012 (1) AD (DELHI) 786805 No Equivalent

808 No Equivalent

(iv)

(iiii)

COMPARATIVE TABLE

OTHER JOURNAL = ILR (DS) 2012 (I)

JANUARY AND FEBRUARY

Journal Name Page No. = ILR (DS) 2012 (I) Page No.

2011 (3) Arb. LR 538 = ILR (DS) 2012 (I) 1

2011 (4) Arb. LR 402 = ILR (DS) 2012 (I) 541

2011 (8) AD (DELHI) 227 = ILR (DS) 2012 (I) 46

2011 (8) AD (DELHI) 196 = ILR (DS) 2012 (I) 103

2011 (9) AD (Delhi) 369 = ILR (DS) 2012 (I) 453

2011 (9) AD (Delhi) 105 = ILR (DS) 2012 (I) 548

2011 (10) AD (Delhi) 398 = ILR (DS) 2012 (I) 578

2012 (1) AD (Delhi) 166 = ILR (DS) 2012 (I) 607

2011 (10) AD (Delhi) 362 = ILR (DS) 2012 (I) 620

2011 (9) AD (DELHI) 340 = ILR (DS) 2012 (I) 538

2011 (10) AD (DELHI) 296 = ILR (DS) 2012 (I) 652

2011 (10) AD (Delhi) 493 = ILR (DS) 2012 (I) 693

2012 (1) AD (DELHI) 179 = ILR (DS) 2012 (I) 776

2012 (1) AD (DELHI) 786 = ILR (DS) 2012 (I) 799

2011 (184) DLT 332 = ILR (DS) 2012 (I) 548

2011 (184) DLT 103 = ILR (DS) 2012 (I) 558

2011 (184) DLT 543 = ILR (DS) 2012 (I) 566

2012 (186) DLT 17 = ILR (DS) 2012 (I) 620

2011 (184) DLT 305 = ILR (DS) 2012 (I) 652

2011 (184) DLT 438 = ILR (DS) 2012 (I) 473

2011 (126) DRJ 333 = ILR (DS) 2012 (I) 652

2011 (185) DLT 662 = ILR (DS) 2012 (I) 681

2011 (185) DLT 673 = ILR (DS) 2012 (I) 684

2011 (185) DLT 419 = ILR (DS) 2012 (I) 699

2012 (275) ELT 513 = ILR (DS) 2012 (I) 711

2011 (185) DLT 497 = ILR (DS) 2012 (I) 747

2012 (186) DLT 379 = ILR (DS) 2012 (I) 776

2011 (126) DRJ 52 = ILR (DS) 2012 (I) 103

2012 (127) DRJ 16 = ILR (DS) 2012 (I) 728

2012 (127) DRJ 61 = ILR (DS) 2012 (I) 776

2012 (1) JCC 26 = ILR (DS) 2012 (I) 693

2012 (1) JCC 236 = ILR (DS) 2012 (I) 681

2012 (1) JCC 1 (Narcotics) = ILR (DS) 2012 (I) 711

2012 (1) JCC 12 (Narcotics) = ILR (DS) 2012 (I) 776

2011 (6) R.A.J. 238 = ILR (DS) 2012 (I) 1

2011 (6) R.A.J. 528 = ILR (DS) 2012 (I) 541

2012 (1) R.A.J. 349 = ILR (DS) 2012 (I) 548

1

2

NOMINAL-INDEX

VOLUME-1, PART-II


Pages

“A”

Ami Chand & Anr. v. Jai Prakash and Ors. .......................................... 460

Amit Kumar v. State (Govt. of NCT of Delhi) ..................................... 388

Anand Singh v. Anurag Bareja & Ors. .................................................. 728

Association of Radio and Television Engineering Employees

and Ors. v. Union of India and Ors. ............................................... 180

“B”


& Ors. ............................................................................................ 754

Baljeet Verma and Smt. Babli v. State ................................................... 110

Bhagwati Devi and Ors. v. D.T.C. and Anr. ......................................... 103

Bimla Bora v. Dr. Shambhuji ................................................................. 747

Bimla Gupta & Ors. v. Mahinder Singh and Ors. ................................. 168

“C”

Chitra v. Pankaj Kashyap ....................................................................... 382

Commissioner of Income Tax Delhi-IV, New Delhi v. EON

Technology P. Limited .................................................................... 363

The Commissioner of Income Tax Delhi IV v. I.P. India Pvt. Ltd. ..... 699


Leasing & Capital Services Ltd. ..................................................... 684

Commissioner of Income Tax-X v. Satish Kumar Agarwal ................. 355

Commissioner of Police, Delhi v. H.C. Laxmi Chand ............................. 46

Cox and Kings India Ltd. v. India Railway Catering and Tourism

Corp. Ltd. ........................................................................................... 1

Customs v. Konan Jean ......................................................................... 776

Customs v. Mohammad Bagour ............................................................ 711

“D”

D.P.S. Chawla v. Union of India & Ors. .............................................. 340


Board of India ................................................................................. 527

Devender v. State .................................................................................. 299

Directorate of Revenue Intelligence v. Bitoren Dolores

Fernandez ........................................................................................ 127

Durga Dass Banka v. Shri Ajit Singh & Ors. ........................................ 607

“G”

Ex. GNR. Naresh Kumar v. Union of India & Ors. .............................. 156

“H”

Harsha Gupta v. M/s. Insulation & Electrical Products (P) Ltd. .......... 140

Hemant Sharma & Ors. v. Union of India and Ors. ............................. 620

“J”

Jaffar Abbas v. Mohan & Ors. ............................................................. 789

Jamia Millia Islamia v. Sh. Ikramuddin ................................................ 398

“K”

K.R. Builders Pvt. Ltd. v. DDA ............................................................. 541

Kathuria Public School v. Union of India .............................................. 652

43

“L”

Lal Chand Public Charitable Trust v. Delhi Wakf Board & Ors. .......... 799

“M”

Madhu Gupta v. M/s. Gardenia Estates (P) Ltd. .................................. 558

Madhurika Sharma & Ors. v. Smt. Bhagwati Devi Sharma

& Anr. ............................................................................................ 538

Manju Kumar v. State N.C.T. of Delhi ................................................. 271

Mohan Singh v. Union of India & Ors. ................................................. 705

“N”


Engineering Ltd. .............................................................................. 548

Neeta Mehra v. Sanjay Mehra ............................................................... 645

New Okhla Industrial Development Authority v. KM Paramjit

& Anr. ............................................................................................ 617

Niranjan Lal Gupta & Anr. v. Gurmeet Singh Baweja & Ors. .............. 757

“P”

Panna Lal & Ors. v. Anjit Kumar Jha & Ors. ....................................... 805

Prabhu Dayal & Ors. v. Union of India ................................................ 121



Puneet Kaur v. Inderjit Singh Sawhney .................................................. 73

Punjab Bearing Traders v. Mohammad Jameel Khan Lodhi ................. 378

“R”


& Ors. ............................................................................................ 490

Rajinder Rai v. MCD and Ors. .............................................................. 453

Raju Chakravarthy v. State of NCT of Delhi ........................................ 638

Raju @ Ranthu @ Raju Kumar, Sanjay Kumar v. State ....................... 736

Ram Parshad v. State ............................................................................ 194

Prof. Ram Prakash v. Bangali Sweet Centre ......................................... 808

Ramesh Chander v. Ganesh Bahadur Kami & Ors. .............................. 259

Riken Alias Diken v. State ..................................................................... 305

“S”

EX. SI Lakhwinder Singh v. Union of India & Ors. ............................ 766

Santosh Kumar Jha v. UOI & Ors. ....................................................... 473

Sapna Talwar & Anr. v. State ............................................................... 224

Satinder Singh v. Bhupinder Kaur ........................................................ 347

Sheo Murti Shukla v. State (Govt. of NCT of Delhi) ............................. 40

Shiv Charan & Ors. v. State .................................................................. 211

Shiv Nath Choudhary Ram Dass v. NDMC & Ors. ............................. 578

State v. Ram Palat .................................................................................. 406

“V”

Ved Prakash v. Sri Om......................................................................... 598

“Y”

Yaro Khan @ Ahmad Shah v. U.O.I. & Ors. .......................................... 90

“Z”

Zahid Parwez v. UOI & Ors. ................................................................ 566

5

6

SUBJECT-INDEX

VOLUME-I, PART-II


ARBITRATION ACT, 1940 AND ARBITRATION &

CONCILIATION ACT, 1996—Applicability—Disputes

between the parties culminated into award dated 12.08.96,

wherein money was awarded in favour of appellant along with

interest from date of award till date of payment or decree,

whichever earlier—Both parties understood that the award was

governed by the Act of 1940 as the reference was made prior

to coming into force of 1996 Act—Appellant filed application

under Sec. 14 & 17 of the 1940 Act, in which Hon’ble Singh

Judge vide order dated 27.05.2002 held that in view of law

prevaliling by way of apex Court judgment, the award

enforceable as decree withoutany application as it is 1996 Act

that was applicable and since no objections were filed under

Sec. 34 of 1996 Act within time, the objections were

dismissed—Neither side challenged order dated 27.05.2002,

which became final and the appellant filed execution

proceedings in which respondent on 12.06.2003 paid the

awarded money with interest calculated from date of award

till 27.05.2002—Thereafter, the appellant claimedinterest from


Thereafter, the apex court gave a re-thought to the then

existing legal position, effect where of was that the award in

question was liable to be governed by the 1940 the Act, under

which interest was liable to be paid only till expiry of 90 days

from award, so respondent under Sec. 151 CPC claimed that

interest paid for period beyond 90 days from date of award

till 27.05.2002 was excess payment and liable to be refunded—

Hon’ble Single Judge allowed the application—Appeal—Held,

order dated 27.05.2002 was based on the then prevalent legal

position and since the respondent did not challenge the said

order, the way others did not to bring about change in legal

position now respondent cannot be allowed to make grievance

and reopen the closed litigation—Also held, the date of decree

remains the same as date of award but the decree is not

enforceable for a period of 90 days in view of Sec.36 of

1996 Act, which is a window given to the judgment debtor

to make payment failing which rigours of enforecement would

come into play, so interest is liable to be paid till decree is

satisfied.

K.R. Builders Pvt. Ltd. v. DDA ................................... 541

— Section 9—Scope in petition for stay of termination of Joint

Venture Agreement—Memorandum of Understanding (MOU)

was executed between Respondent and Petitioner—

Respondent gave permission to Petitioner to own and operate

luxury tourist train for exclusive use of Joint Venture

Company—Joint Venture Agreement executed—Commercial

operation commenced in March 2010—In November 2010,

the Respondent forwarded draft of lease agreement for luxury

train—Petitioner pointed out that draft was inconsistent with

the MoU and JVA—Petitioner submitted that draft MoU

submitted in 2011 sought to change and modify the entire

arrangement—In August 2011, the Respondent terminated the

lease agreement—Article 30 of JVA provided that disputes

were to resolved by first mutual negotiations and thereafter

by arbitration—JVA did not have a termination clause—

Petitioner contended that lease subsists by implication—Claims

and counter claims to be adjudicated by arbitral tribunal—

Respondent contended that petition was not maintainable—JVA

void as consent was obtained by fraud—Petitioner sought stay

of termination letter issued to JVC when JVC is not made

party to the proceedings—Inquiry, if any, can be

compensated by money—Train did not operate in a manner

contemplated in the JVA—Dispute relating to operation cannot

be resolved by arbitration—Also that Petitioner did not pay

haulage charges to Respondent—Any further operation would

result in liabilities—Suggested that train be run by owner/

Respondent—Revenues without deduction by either party be

deposited in separate account—Bookings may be transferred

7 8

to Respondent on board and off board expenses may be

allowed to be charged on this account—Existing service

providers may be retained—Termination would be subject

matter of arbitration. Held—While granting interim relief under

section 9, Court cannot give conclusive finding as to the fact

that agreement was validly terminated or not, to be decided

by arbitral Tribunal—Scope of Section 9 does not allow

restoration of JVA; would amount to nullifying the

termination—Only remedy lies in challenging the validity by

invoking arbitration clause and claim damages—Prayer for

interim injunction disallowed—However, in large but public

interest-there is no harm in continuing the arrangement for

some time would not confer any further rights in favour of

the parties—Fit case for appointment of receiver as interim

measure.

Cox and Kings India Ltd. v. India Railway Catering and

Tourism Corp. Ltd. ............................................................. 1

— Section 34—Limitation—Award dated 20.03.10 aganist

Petitioner pronounced and certified copies sent by the Arbitral

Tribunal by registered post to Petitioner's corporate office in

Delhi, which was the address in the cause title of proceedings

before the Tribunal and also in the OMP before the Hon’ble

High court—Respondent filed application under Sec. 33(4) of

the Act and notice was served on the counsel for Petitioner

on 26.04.10, so on 17.05.10 counsel for Petitioner appeared

before the Tribunal and claimed that the Petitioner had not

received copy of award, but this contention was rejected by

the Tribunal on 31.05.10 observing that postal receipts and

AD cards were on record—Tribunal passed amended award

on 09.09.10 and again sent certified copies to the parties by

registered post on 01.10.10—Petitioner’s Project Director at

Salem wrote letter requesting for formal copy of amended

award, in reply where of Secretary to the Tribunal informed

having already sent the same, but without prejudice to rights

of parties, another was sent and the same was received by

the Petitioner on 20.12.10—Petition challenging the award filed

on 15.03.11, and as per Petitioner, the objections are within

time—Held, the memo of parties before the Arbitral Tribunal

as well as the OMP indicated address of the Petitioner as its

corporate address in Delhi, where the award and the amended

award were sent by registered post by the Tribunal—In the

absence of Petitioner informing any other address for dispatch

of communications, it was not the duty of the Tribunal to

make enquiries about proper adddress of parties for the

purposes of communications—As such, the Arbitral Tribunal

fully complied with Sec. 31(5) of the Act—Further,

proceedings under Sec. 33 also show that parties knew about

passing of award and Petitioner knew of sending of award to

its Delhi office, but Petitioner made no efforts to send the

same to its Salem office—Accordingly, Petition held time

barred.


Engineering Ltd. ............................................................. 548

ADMINISTRATIVE TRIBUNALS ACT, 1985—Section 3(q) and

19—Constitution of India, 1950—Article 323A—Writ petition

filed challenging withdrawal of recognition to Petitioner

Associations and consequential orders by which office bearers

of Petitioner Associations transferred from their postings at

New Delhi—Objection raised to maintainability of writ

petition—Plea taken, since petition concerns a ‘service matter’

petitioner should approach Central Administrative Tribunal

(CAT)—Per contra plea taken, recognition of association of

employees would not fall within ‘service matters’—Merely

because incidental effect of withdrawal of recognition of

Petitioner Associations is that their office bearers would not

be able to demand that they remain posted in Delhi, central

issue in writ petition would not become a ‘service matter’

for CAT to adjudicate upon it—Held—When word

‘whatsoever’ is read with words ‘all matters relating to

condition of his service’, it is clear that words ‘service

matters’ have to be given broadest possible meaning and would

encompass all matters relating to conditions of service—

109

Immediate and direct effect of impugned order is that office

bearers of Association who earlier may have enjoyed

preferential treatment regarding his place of posting would no

longer have that privilege—Question of validity of impugned

order would therefore certainly be a matter pertaining to

‘conditions of service’ and would clearly therefore fall within

ambit of ‘service matter’—Preliminary objection raised as to

maintainability of present petition in present form upheld.

Association of Radio and Television Engineering Employees

and Ors. v. Union of India and Ors. .......................... 180

— Section 19—Petitioner appeared in Limited Departmental

Competitive Examination for promotion—All candidates

securing 50% marks in each of two papers were to be declared

successful and eligible for promotion—Petitioner was shown

to have secured 49% marks in first paper and 58% marks in

second paper and not declared successful—Case of petitioner

that correct answer was in option (c) which he had exercised

but in answer key correct answer has been erroneously given

against option (b)—Answer of petitioner was marked wrong

and no marks awarded therefore—Application of petitioner

dismissed by Administrative Tribunal noticing that Rule 15

relating to Departmental Examinations specifically prohibits

re-evaluation of answer sheet—Order challenged before High

Court—Plea taken, present case is not a case of re-evaluation

but of re-computation and of correction of mistake—Per

contra plea taken, if matter is to be reopened, it needs to be

reopened qua all candidates who had appeared in examination

which is not possible as answer sheets have since been weeded

out—Held—Rule prohibiting re-evaluation framed with respect

to essay type answers cannot be said to be applicable to answer

to multiple choice questions—Once it is established that answer

is correct, error in not giving marks for same is error akin to

a mistake/ re-totaling which under Rules of examination also

is permitted—Right to inspect answer sheets carries with it a

right to seek judicial review of error/mistake and is intended

to eliminate arbitrariness and injustice—Instead of being

declared successful, owing to mistake/error of respondents

themselves, petitioner has been declared unsuccessful—This

Court in exercise of powers of judicial review is not called

upon to undertake any exercise of re-appreciation/ re-

assessment of answers of petitioner but to only correct

obvious mistake—Petitioner declared successful in

examination and declared eligible for promotion in pursuance

thereto w.e.f. date when others similarly situated as him were

promoted with all consequential benefits.

D.P.S. Chawla v. Union of India & Ors. .................. 340

CODE OF CIVIL PROCEDURE, 1908—Order IX Rule 7—

Application filed ten years after the defendants were proceeded

ex parte—Default explained only on the ground that the

defendants are housewives, who had engagged a lawyers and

were not aware of the proceedings—Held, mere engaging the

lawyers does not take away duty of the litigant to prosecute

the case diligently, so trial Court rightly dismissed the


Smt. Madhurika Sharma & Ors. v. Smt. Bhagwati Devi

Sharma & Anr. ............................................................... 538

— Section 115, 151 Order 9 Rule 43 Rule 1(c)—Application to

restore divorce petition which was dismissed in default,

dismissed because of non compliance of direction to liquidate


Respondent filed application under Section 151 CPC for

restoration of divorce petition and paid part of arrears of

maintenance and undertook to pay balance in three months—

Matrimonial Court allowed application and restored divorce

petition—Order challenged before High Court—Plea taken,

Trial Court committed jurisdictional error by invoking power

under Section 151 CPC to restore divorce petition filed by

respondent when only remedy available to respondent was to

file appeal—Order dismissing application for restoration of

divorce petition was passed on merits and could not have been

recalled by Trial Court in exercise of its inherent power—

1211

Held—Application under Order 9 Rule 4 was rejected only for

want of payment of maintenance amount and since respondent

could be said to have paid said amount with said undertaking

there was no reason left for Court to deny prayer of

respondent to seek restoration of his divorce petition—

Matrimonial disputes need to be adjudicated on its merits;

substantive rights of parties cannot be defeated by adopting a

hypertechnical approach, that too on basis of procedural

niceties—Procedural laws are handmaids of justice and cannot

come in way of advancing cause of justice—No merit in

petition which is hereby dismissed.

Neeta Mehra v. Sanjay Mehra ...................................... 645

— Section 100—Second appeal—Suit for mandatory and

prermanent injunction filed by Appellant praying for decree

directing Respondent no.1 to remove unauthorized construction

in the shop and to further restrain him from carrying out any

further construction therein—Suit filed inter-alia on the ground

that father of the Respondent no.1 had given an undertaking

to remove unauthorized construction before the Hon’ble

Division Bench by an earlier order dated 22.08.1975—It was

alleged that appellant come into possession after the death of

his father and despite an undertaking given by his father, had

raised unauthorized construction on the roof of the shop—

Appellant though had filed his affidavit in evidence and had

also been partly examined but he could not appear further

because of his illness, being aged—Fresh affidavit filed by his

son as attorney—suit dismissed by Trial Court observing that

attorney had not deposed anywhere that he had personal

knowledge about the facts of the case—First Appellate Court

also dismissed the appeal—Held, as a special power of attorney

son of Appellant was authorized to depose in place of his

father—Neither his evidence could be rejected nor an adverse

inference drawn on the ground that plaintiff himself had not

appeared as his own witness—The question to be considered

only was whether attorney holder son of plaintiff had deposed

something which was only in the personal knowledge of the

plaintiff or some act to which only plaintiff was privy to—

The factum of the undertaking being given to the Division

Bench could not have been something exclusively in the

personal knowledge of Appellant alone—The Copy of order

of Hon'ble Division Bench proved on record by son of

Appellant as his attorney.

Shri Durga Dass Banka v. Shri Ajit Singh & Ors. ... 607

— Section 96—Limitation Act, 1963—Section 5—Suit for

declaration and permanent injunction filed for restraining the

appellant from abolishing the suit property and interfering in

the peaceful possession—Trial Court vide judgment dated

01.05.2010 decreed the suit—Appellant filed appeal after a

delay of 78 days with application under Section 5 of limitation

Act—Earlier counsel changed—New counsel requested earlier

counsel to hand over the record—Provided only 26.06.10—

Inspection report dated 07.01.2005 found missing—Certified

copy made available on 28.07.2010 Held—The words

'sufficient cause as appearing in Section 5 of the Limitation

Act have to be construed liberally so as to advance substantial

justice to the parties; a litigant should not be shut out at the

threshold and be deprived of the opportunity to be heard on

merits; dealy may be condoned provided that the applicant is

able to furnish a sufficiently justifiable explanation for his

delay— No hard and fast rule can be laid down—Each case

has to be decided on its factual matrix—Unless there is lack

of bona fides or a total inaction or negligence on the part of

the litigant, the protection of Section 5 should not be deprived

to a party, mistake of a counsel may also amount to a

sufficient cause for condonation of delay; it is always a





set-aside.


KM Paramjit & Anr. ..................................................... 617

1413

— Section 96; Indian Contract Act, 1872—Section 74—Suit of







decreed.


— Order VII Rule 11—Petition against rejection of application

u/o 7 Rule 11—Suit for damage on account of libel and

slander-whether plaint discloses cause of action—Held—

Defendant's contention that alleged defamatory statement is

protected by an absolute privilege indeed a defense raised by

Defendant—Court precluded from going into the same while

dealing with application u/O 7 R. 11—Held Cause of action

is bundle of facts—Only after trial it will be known whether

averments qualify as absolute privilege or not Petition

Dismissed.

Dr. Bimla Bora v. Dr. Shambhuji ............................... 747

— Order XXXIX Rule 1&2—Election dispute—Election for the

posts of President and vice President of Managing Committee

of Defendant No.3 held by postal ballot from members across

the country—Plaintiff No.1 and Plaintiff No.2 contested for

President and Vice President respectively—During counting

it was observed that some ballot papers had been tampered

with by erasing the tick mark placed against the names of

plaintiffs and putting tick mark against the names of

Defendants No. 4&5 on ballot papers—Plaintiffs claimed that

these tampered ballots be read in their favour—Defendant No.1

proceeded with declaring defendants No. 4&5 as President

and Vice President—Plaintiffs contend that the rejected ballots

be counted in their name—Held, prima facie it appears that

the disputed ballot papers have been tampered with, but going

by the claim of Plaintiffs, since these votes had been cast in

presence of Plaintiffs, Election officer had no option but to


themselves to be winning candidates—Since the dispute

between the parties is only with respect to these ballots, which

are invalid, vote having been cast in the presence of plaintiffs,

there is no ground to order re-election at this stage and no

case for interim injunction made out.

Niranjan Lal Gupta & Anr. v. Gurmeet Singh Baweja &

Ors. .................................................................................. 757

— Order XXII Rule 10—Suit filed by the plaintiff M/s DLF

Universal Ltd. aganist five defendants including respondent no.

1 Delhi Wakf Board, stating inter alia that the piece of land

measuring 1410 Sq. Yards forming part of the land of the

petitioner had been encroached by the respondents—Written



29.01.1983 in its favour and since the decree that remained

unchalllenged the land now was in his share—Applicant herein

namely Lal Chand Public Charitable Trust filed an application

under Order XXII Rule 10 in 1996 while the suit had been

filed in 1982 stating therein that after a settlement deed dated

1989, the MCD became owner of the said land—Submitted

that MCD is not contesting this suit as in another litigation

between the parties it had allowed the case to be dismissed in

default—If case is not contested it would suffer the same

fate—It would result in jeopardizing its interest as it was lessee

in respect of the said land—Held, Order XXII Rule 10

postulates that suit can be continued by the person on whom

the petitioners interest has devolved which in this case is MCD

and not the Applicant who had been a lessee since 1963 in

the said land and his status not changed since then.

Lal Chand Public Charitable Trust v. Delhi Wakf Board &

Ors. .................................................................................. 799

1615

— Order VI Rule 17—Eviction petition by respondent seeking

eviction of petitioner from ground floor of premises bearing

no. 138-A, Golf Links, New Delhi, on the ground of bonafide

requirement for residence of its Director Amit Deep Kohli—

Leave to defend filed on 23.07.10—Application seeking

amendment of the leave to defend filed on 09.05.2011—Amit

Deep Kohli is a Director in other holding companies of the

petitioner—Other properties available with Company for

residence—Tenant is an old lady staying alone—Petitioner

submitted, Landlord was a construction company carrying on

construction activity—Other properties were commercial flats

not part of Delhi—Application seeking leave to defend

dismissed—Petition—Held—The facts which were sought to

be incorporated by amendment i.e. that the landlord Company

was a part of a huge Real Estate Group of Companies having

several properties in their name were all facts known to the

tenant—These facts were pre-existing i.e. existing at the time

when the application for leave to defend was filed; if such an









(P) Ltd. ........................................................................... 558

— Order XVI—Appellant in the pending suit filed an application

for payment of rent from October 2008, in terms of the lease

deed before Civil Judge—Which was dismissed. Appeal

preferred against the said order was also dismissed. However

as per the modified order Court directed the respondent to

deposit in Court within one month an amount calculated at

the rate of Rs. 30,000 per month, from October 2008 till 6th

August, 2009. That the said amount was further directed to

be kept in a fixed deposit and to abide by the final decision of

the Court. Respondent preferred a Special Leave Petition,

which was dismissed, however compliance of order dated 6th

August 2009, was extended by two weeks without prejudice

to the right of the parties. Appellant filed Contempt Case (Civil)

No. 789/2009 against respondent for not complying with the

order dated 6th August, 2009. The same was however

dismissed in limine on 12th October, 2009. The same was

however dismissed in limine on 12th October, 2009 observing

that since the order dated 6th August, 2009 was in the nature

of direction under Order XVA of the CPC, the remedy of the

appellant was by way of execution and not by way of

contempt. The appellant thereafter applied for execution of the

order dated 6th August, 2009/30th October, 2009 and it was in

fact in pursuance to the said execution that the amount came

to be deposited as aforesaid by the Respondent. Thereafter

the appellant filed an application being CM No. 15956/2011

in the disposed of Contempt Case (Civil) No. 789/2009 again

seeking release of the amount. The said application was also

dismissed by the learned Single Judge vide order dated 26th

August, 2011, again in view of the direction in the order dated

6th August, 2009 being for deposit of the amount in the Court

and there being no direction for release thereof to the appellant,

which was challenged. Held: When the action of a party/litigant

before the Court is found to be irrational, illogical and injurious

to the others, to not come to the rescue of a litigant in such

a situation would not be rendering justice for which the Courts

have been set up. Justice is a virtue which transcends all

barriers. Neither the rules of procedure nor technicalities of

law can stand in its way. It is the duty of the Court, as a

policy, to set the wrong right and not allow the perpetuation

of the wrongdoing—Deposited amount directed to be released

immediately.

Prof. Ram Prakash v. Bangali Sweet Centre.............. 808

— Order 1 Rule 10(2)—Maintainability of Petition without

arraying JVC as party—Article of Association-agreement

between shareholders and JVC—Hence Petitioner and

1817

Respondent are included—JVC has separate arbitration

agreement as Article 200 of Article of Association—Therefore

prima facie it cannot be said that there is no arbitration between

the JVC and the parties in the present petition—Only

shareholders and persons in management of the JVC are the

petitioner and the respondent—Under 9 the Court has

jurisdiction to preserve subject matter of the disputes—Under

Order 1 Rule 10(2), the Court has power to strike out or add

parties at any stage—Respondent and Petitioner are

shareholders of JVC—Therefore JVC be impleaded as

Respondent No.2.

Cox and Kings India Ltd. v. India Railway Catering and

Tourism Corp. Ltd. ............................................................. 1

— Order X and Order XXI Rule 41 (2)—Application for grant

of interim maintenance during pendency of divorce petition

dismissed on ground that petitioner has nowhere stated that

she is not earning anything or income earned by her is not

sufficient for her to support herself—Order challenged before

High Court—Plea taken, merely because petitioner in her

application did not specifically plead that she was not having

any independent income for her sustenance, it should not have

deprived petitioner of grant of interim maintenance as from

total reading of averments made by her in divorce petition it

was manifest she had stated that she was financially

dependent on her parents which would mean she had no

independent source of income—Held—A mere omission on

part of petitioner to plead that she has no independent source

of income cannot deny her relief of interim maintenance—

Family Court should have given fresh opportunity to petitioner

to file a fresh affidavit disclosing her income and her exact

financial status and even Court had ample powers to take

statements of parties under Order X of CPC and even parties

could have been directed to file affidavit in terms of Form

No. 16A Appendix E under Order XXI Rule 41 (2) CPC—

Approach adopted by learned Family Court is totally insensitive

which is not expected of a Court charging functions of a

Family Court where more humane and sensitive approach in

required—Matter remanded back for fresh decision—Petitioner

directed to file a better affidavit disclosing her correct financial

status in said affidavit—Petition disposed of.

Chitra v. Pankaj Kashyap ............................................. 382

— Order VII Rule 11 and Section 151—Hindu Adoption and

Maintenance Act, 1956—Section 18—Code of Criminal

Procedure, 1973—Section 125—Order of Trial Court whereby

a decree of divorce under Section 13(2) (iii) of Hindu Marriage

Act was passed, challenged in appeal before High Court—Plea

taken, order passed under Section 125 of Cr. PC was interim

order and based on that, Matrimonial Court could not have

granted decree of divorce—Order which gives a right to wife

to seek divorce is a final and not interim order—Held—A bare

look at Section 13(2) (iii) would manifest intention of

legislature as two separate expressions have been used in said

Section i.e. ‘decree’ and ‘order’ which would necessarily

mean either interim or final order—Intention of legislature is

to give a right to wife to invoke said provision in case where

even interim order has been passed in proceedings under

Section 18 of H.M. Act of Section 125 of Cr. PC—If

contention of counsel for appellant is accepted then purpose

of section would be negated as wife who seeks a decree of

divorce under said Section would have to wait till a final order

under Section 18 or Section 125 is passed which would

certainly mean insisting on inevitably long waiting period which

is not object of this Section—No merits in appeal which is

hereby dismissed.

Satinder Singh v. Bhupinder Kaur .............................. 347

CODE OF CRIMINAL PROCEDURE, 1973—Section 204,

256—Respondent filed complaint under Section 402, 406, 506

IPC against petitioner—In pre Summoning evidence, he

examined himself and one more witness who was not named

in list of witnesses as his witness—Summoning order was

2019

passed by learned Metropolitan Magistrate and case was listed

for pre-Summoning evidence—Aggrieved by summoning

order, petitioner challenged it and urged, one of the witness

namely Sh. Raj Singh examined at pre summoning stage, was

not named in list of witnesses which caused injustice to







— Section 313—Petitioner convicted under Section 379/34 IPC
























— Section 125—Order of Trial Court whereby a decree of

divorce under Section 13(2) (iii) of Hindu Marriage Act was

passed, challenged in appeal before High Court—Plea taken,

order passed under Section 125 of Cr. PC was interim order

and based on that, Matrimonial Court could not have granted

decree of divorce—Order which gives a right to wife to seek

divorce is a final and not interim order—Held—A bare look

at Section 13(2) (iii) would manifest intention of legislature

as two separate expressions have been used in said Section

i.e. ‘decree’ and ‘order’ which would necessarily mean either

interim or final order—Intention of legislature is to give a right

to wife to invoke said provision in case where even interim

order has been passed in proceedings under Section 18 of

H.M. Act of Section 125 of Cr. PC—If contention of counsel

for appellant is accepted then purpose of section would be

negated as wife who seeks a decree of divorce under said

Section would have to wait till a final order under Section 18

or Section 125 is passed which would certainly mean insisting

on inevitably long waiting period which is not object of this

Section—No merits in appeal which is hereby dismissed.


— Sections 155, 195, 482—Drugs & Narcotics Act, 1940—

Section 22, 32—FIR for offences punishable under Section

186/353/506/34 IPC registered in Police Station Defence

Colony on statement of Drug Inspector alleging, on

21.08.2003 at about 4 p.m., he along with his colleagues as

part of their official duty visited premises M/s Shiv Store,

Defence Colony Market, New Delhi—Three persons present

in shop prevented Inspector from inspecting and examining

purchase and sale records, they physically pushed him out of

the shop and threatened him by using abusive language—Thus,

FIR lodged on complaint by Drug Inspector—Accused persons

arrested and bailed out—Subsequently during further

investigation Section 22(3) Drugs & Cosmetics Act added and

learned Metropolitan Magistrate took cognizance on charge

2221

sheet—Petitioner challenged cognizance and urged Section 186

IPC is non cognizable therefore police had no power to register

and investigate case without prior permission of concerned

Metropolitan Magistrate—Held:- Proceedings for an offence

punishable under Section 186 IPC could not be put into motion

without a formal complaint lodged with the Court concerned

by the public servant who had been obstructed in discharge

of his public duties or against whom an offence is

committed—The proceedings under Section 186 IPC quashed

and for remaining offences the trial court was directed to

proceed as per law.

Shiv Charan & Ors. v. State ........................................ 211

— Section 374 (2)—Indian Penal Code, 1860—Sections 302, 201

and 34—Murder case—No eye witness—Based upon

circumstantial evidence of last seen and recovery of material—

Evidence of previous enmity and recovery of blood smeared

soil, earth control with other material like blood smeared brick,

blood smeared rope and other exhibits at the instance of

accused persons—Ld. ASJ held the appellants guilty and

convicted them for the offences punishable u/s 302/201/34

IPC and sentenced—Appeal challenging that there are material

contradictions on all the important aspects—Possibility of

deceased having met with an accident cannot be ruled out—

Chain of circumstances not complete—Held—The well known

rule governing circumstantial evidence are that:- (a) the

circumstances from which the inference of guilt of the accused

is drawn have to be proved beyond reasonable doubt and have

to be shown to be closely connected with the principal fact

sought to be inferred from those circumstances; (b) the

circumstance should be of a determinative tendency unerringly

pointing towards collectively, are incapable of leading to any

conclusion, on a reasonable hypothesis, other than that of the

guilt of the accused—No doubt, the Courts have also added

two riders to the aforesaid principle namely, (i) there should

be no missing links but it is not that every one of the links

must appear on the surface of the evidence, since some of

these links can only be inferred from the proved facts and

(ii) it cannot be said that the prosecution must meet each and

every hypothesis put forward by the accused however far-

fetched and fanciful it may be.

Riken Alias Diken v. State ............................................ 305











deceased met with an accident cannot be ruled out—Chain

of circumstances not complete—Held—It is a well established

legal principle that in a case based on circumstantial evidence

where an accused offers a false explanation in his statement

under Section 313 Cr. P.C. in respect of an established fact,

the said false denial could supply a missing link in the chain

of circumstances appearing against him.












2423

deceased met with an accident cannot be ruled out—Chain

of circumstance not complete—Held—From the evidence

provided by the prosecution, it is clear that the accused in

pre-planned manner committed murder of Ramesh Rai—The

evidence of the prosecution is trustworthy with respect of the

proof of motive as it has been proved on record that all

accused persons had earlier also assaulted the deceased on

the occasion of Holi in village—PW-7 Ranjeet Singh, an

independent witness, stated that at the instance of accused

persons, blood stained shirt, T-shirt, blood stained brick affixed

with hair, rope etc were recovered—The recovery of the said

articles connected the accused persons with the crime and

proved the guilt beyond all reasonable doubt—There is

overwhelming circumstantial evidence to show that the

accused committed the crime—Appeals dismissed.


CONSTITUTION OF INDIA, 1950—Article 226—Petitioner/

Appellant Licensee of a shop and also of an area behind the

shop containing all drainage including gully traps and manholes

with underground drainage pipeline for waste water to be

taken to municipal drains—License cancelled in respect of the

said area behind the shop because of the Petitioner/Appellant

not providing access through his shop to the said area as per

the term of the license—During submissions it was urged on

behalf of the petitioner / Appellant that Petitioner was willing

to give undertaking to provide access to the said area for

maintenance, cleaning etc.—Held, location of the area shows

that it was a common area within the meaning of Delhi

Apartments Ownership Act, 1986—Though this was not the

reason for the cancellation of the license but the Court in

exercise of powers under Article 226 of the Constitution of

India, cannot grant relief contrary to law—It being the

common area Court can not confer an exclusive right in

respect of the said area to the Petitioner / Appellant.

Mohan Singh v. Union of India & Ors. ..................... 705

— Article 226—Delhi Municipal Corporation Act, 1957—Section


























— Writ—Prevention of Corruption Act, 1988—Section 19—









2625







with costs.


— Art. 226 Writ—Tender—interpretation of commercial

contract—Petitioner challenged the order dated 04.10.2010

scrapping/cancelling tender no.6724/T-138/08-09/SPL/24, as

petitioner was L-1 of respondent no.1, vide writ petition no.

8252/2010, Respondent no.1, took the plea that he exercised

its right as owner under Article 28.1 of the Tender

document—Writ petition withdrawn with liberty to take

recourse to legal remedy in accordance with law—Respondent

no.1 with respondent no.2 and respondent No. 3 floated fresh

tender no. 6724/T-183/10-11/SKG/28 with amendment

pertaining to clause 8.1.1.1. dealing with past experience of

the bidder in executing a similar work—Challenged the

amendement in clause 8.1.1.1 plea of malice, arbitrariness,

unresonablenes and lack of fairness—Held—Respondent no.1

withheld completion report received from Dy. Chief Engineer-

IV Mus Car Nicobar island while seeking independent input

from respondent no.2—Raised certains queries followed by

series of letters—integrity of the entire process was suspect—

Decision of respondent no.1 dated 04.10.2010 fraught with

malice in law, contrary to the principles of fairness, equity

and good conscience—Amended clause 8.1.1.1 bad in law.


& Ors. ............................................................................. 490








































2827



















of India ........................................................................... 527


1992—Sections 24 (1) and 27—Respondent filed a coomplaint

before Ld. CMM for the offence under Sections 24(1) and

27 of the Act against M/s Master Green Forest Ltd—

Allegations that accused company was operating collective

investment scheme—Raised huge amount from General Public

in contravention of Act and Regulations—There were




offence—Only company was arrayed as an accused—Ld.



punishable under Section 24(1) and 27 of the Act and




Contended—No specific role is assigned to them in the

complaint—Merely stating that all the Directors and promoters

connived with each other and were in-charge and responsible

for the day-to day functioning of the company cannot fasten

the vicarious liability on the petitioners—Respondent contended

that no case for quashing is made out—Ingredients in the

comlaint disclose commission of cognizable offence—Held—

Complaint clearly stated that the promoters and Directors of

the Company in-charge and responsible for the conduct of

its affairs have connived with each other and have committed

the offence—In the present case the offence alleged is of

running a collective investment scheme contrary to the

provisions of SEBI Act and Regulations—No doubt Section

27 of SEBI Act makes responsible all other Directors of the

company who are responsible and in-charge of the day-to day


number of people can be involved and this is the allegation of

the Respondent in the complaint. Thus, I find no merit in the

contention that even on the facts of the present case no case

for proceeding aganist the Petitioners are made out.


Board of India ............................................................... 527

— Article 226—Writ —Narcotic Drugs and Psychotropic

Substance Act, 1985 (NDPS Act)—Section 68(H) (I) Section

68 A(2) (d)—Section 68 B(g)—Section 68 j—Prevention of

Illicit Traffic in Narcotic Drugs and Psychotropic Substance

Act, 1988 (PITNDPS Act)—Section 3(1) and 10(1)—

Detention order dated 26.07.1989 issued aganist Mohd. Azad

@ Avid Parvez, brother of the petitioner—Detained w.e.f.


beyond initial three months issued—Detention order dated

26.07.1989—challenged before Calcutta High Court—

Unsuccessful—Special Leave Petition before the Supreme

Court dismissed—Challenge to order u/s.10(1) successful—

Detention beyond initial three months vitiated—show cause

3029

notice u/s. 68 H (1) NDPS Act issued to the petitioner—reply

submitted—Daclaration issued and properties forfeited to the

Central Government vide order dated 16.10.1997—Appeal

before the Appellant Authority—Dimissed vide order dated

07.06.1999—Order challenged through the present writ

petition under Article 226—Plea that the properties were

acquired by his father for him not taken before the Competent

Authority nor before the Appellate Authority—No document

filed either before the Competent Authority nor before the

Appellate Authority —Held—Plea after thought—Cannot be

raised for the first time in the Writ petition—The burden of

proving that the property was not illegally acquired on the

person affected—The consistent findings do not call for any

interfernce—Petition dimissed with costs.


— Article 226—Petition to restrain the respondent/NDMC from

removing the petitioner from the sites occupied by them till

the enactment of an appropriate legislation, in terms of the

directions issued by the Supreme Court in the case of Gainda

Ram—Respondent contended—Simply because legislature has

not enacted a law, it cannot be said that there existed a

vacuum—In Sodan Singh case Supreme Court directed for

immediate eviction of unauthorised squatters/hawkers—Held—

On the question of how to ascertain the implication of a status

order passed by a Court in the case of Messrs Bharat Cocking

Coal Limited (supra), it was observed by the Supreme Court

that the expression, ‘status quo’ is undoubtedly a term of

ambiguity and at times, gives rise to doubt and difficulty and

in case any party has any doubt on the meaning and the effect

of the status quo order, the proper course for such a party

would be to approach the Court that had passed the status

quo order, to seek clarifications—It would not be appropriate

for this Court to grant stay orders in the face of the status

quo order dated 15.07.2011 passed by the Supreme Court—

It was reiterated that any such order shall be an anti-thesis

to the orders of the Supreme Courts which must be respected

both, in letter and spirit—In such circumstances, any interim

orders to the petitioners declined —However, liberty granted

to both the parties to apply to the Supreme Court for a

clarification of the status quo order dated 15.07.2011 passed

in the case of Gainda Ram (supra).

Shiv Nath Choudhary Ram Dass v. NDMC & Ors. ... 578

— Article 19 & 226—Petition seeking mandamus to direct

resondent No. 1 to take appropriate steps so that respondent

No. 2 i.e. All India Chess Federation does not ban/threaten to

ban chess players, associating themselves with other chess

associations—Petitioners were chess players registered with

respondent No. 2—Petitioners being amateurs liked to play

chess whenever an opportunity presented itself even in those

tournaments not organised by respondent no. 2—Respondent

No. 2 prohibited chess players registered with it from playing

in any tournament/competition which did not have the approval

of respondent No. 2—This is highly monopolistic and anti

competitive and exploiting its dominant position to impose such

unreasonable restriction on the rights of players—Respondent

contended that there was statutory obligation on the part of

respondent No. 1 to issue directions as sought for—Held—


Competition Act read with definition of “service” thereof,

clearly shows that the respondent no. 2 is an enterprise which

is covered by the said provisions—The allegation against

respondent no. 2 is that respondent no. 2, by virtue of its

agreement with the petitioners, was seeking to control the

provision of services which was causing adverse effect on

competition within India, in as much as, the chess players

registered with respondent no. 2 were not free to form another

association or to organize tournaments and participate therein,

without facing the consequence of losing their registration with

respondent no. 2 which is the nationally recognized sports

federation for the sports of chess—The power of this Court

31 32

under Article 226 of the Constitution of India extends to the

issuance of appropriate directions, orders or writs for

enforcement of any of the rights conferred by Part III of the

Constitution or for any other purpose—Since in the present

case the petitoner has brought to this Court's notice the

aforesaid state of affairs in relation to respondent no. 2 the

said aspects need thorough investigation under the provisions

of the Competition Act by the Competition Commission—

There could be breach of the petitioners fundamental right to

freedom, resulting from the policies and practices of

respondent No. 2, as guranteed under Article 19(1)(c) and

19(1)(g) of the Constitution of India—Directions issued to

Competition Commission to enquire into the alleged

contravention of the Provisions of Section of 3 and Section

4 by respondent no. 2 by its aforesaid constitutional provisions

and conduct under Section 26 of the Competition Commission

Act, 2002.

Hemant Sharma & Ors. v. Union of India

and Ors. .......................................................................... 620

— Writ—Service matter—Delhi Police (Punishment & Appeal)

Rules, 1980—Rule 12—Respondent along with Constable

Sheel Bahadur apprehended Lal Bahadur with stolen articles,

who was an accused in FIR No. 83/1995 u/s. 381/411 IPC

P.S. Subhash Chowk, Jaipur, Rajasthan —Valuable articles

and cash retained and Lal Bahadur let off without taking any

legal action against him—Lal Bahadur apprehended by SI

Narain Singh of PS Subhash Chowk, Jaipur—On his

disclosure and identification the respondent was arrested—The

Stolen articles recovered from them—Respondent placed under

suspension w.e.f. 09.06.1995 and department enquiry

initiated—Respondent challenged the initiation of department

inquiry before the Tribunal—Departmental inquiry kept in

abeyance till decision in criminal case as per direction of the

Tribunal—Respondent acquitted in the criminal case vide order

dated 22.01.2001—Suspension reviewed and revoked vide

order dated 13.02.2001—Disciplinary proceedings re-opened

under Rule 12 Delhi Police (Punishment & Appeal) Rules 1980

on the ground that the acquittal in criminal case was on

technical ground and not on merits and that the witnesses had

been won over—Disciplinary authority on the findings of

Enquiry Officer held the charges against the respondent

proved—After considering the representation of the respondent

punishment of forfeiture of 4 years of approved service

permanently imposed—Appeal preferred to the Appellate

Authority—Appeal dismissed vide order dated 12.07.2002—

Respondent challenged this order before the Administrative

Tribunal—Tribunal quashed the order and remitted the matter

back for reconsideration from the stage of penalty order—

Matter reconsidered and same punishment awarded—Appeal

dismissed by the Appellate Authority vide order dated

11.10.2004—Respondent challenged this order before the

Administrative Tribunal—The Tribunal held the acquittal in

criminal case was not on technical grounds but on merits—

exception carved out under Rule 12(a) cannot be invoked—

Orders of the Disciplinary Authority and Appellate Authority

set aside vide order dated 25.05.2005—Aggrieved by the order

petitioner challenged the same through the writ petition—

Held—The acquittal on perusal of the evidence of all the

witness and finding it to be not sufficient to conclude the guilt

of the accused, is not acquittal on technical grounds—There

is no presumption in law that if a witness had turned hostile

he/she had been won over by the accused—No illegality,

irregularity in the order of the Tribunal—Petition dismissed.

Commissioner of Police, Delhi v. H.C. Laxmi

Chand ................................................................................ 46

— Article 323A—Writ petition filed challenging withdrawal of

recognition to Petitioner Associations and consequential orders

by which office bearers of Petitioner Associations transferred

from their postings at New Delhi—Objection raised to

maintainability of writ petition—Plea taken, since petition

3433

concerns a ‘service matter’ petitioner should approach Central

Administrative Tribunal (CAT)—Per contra plea taken,

recognition of association of employees would not fall within

‘service matters’—Merely because incidental effect of

withdrawal of recognition of Petitioner Associations is that

their office bearers would not be able to demand that they

remain posted in Delhi, central issue in writ petition would

not become a ‘service matter’ for CAT to adjudicate upon

it—Held—When word ‘whatsoever’ is read with words ‘all

matters relating to condition of his service’, it is clear that

words ‘service matters’ have to be given broadest possible

meaning and would encompass all matters relating to

conditions of service—Immediate and direct effect of

impugned order is that office bearers of Association who

earlier may have enjoyed preferential treatment regarding his

place of posting would no longer have that privilege—

Question of validity of impugned order would therefore

certainly be a matter pertaining to ‘conditions of service’ and

would clearly therefore fall within ambit of ‘service matter’—

Preliminary objection raised as to maintainability of present

petition in present form upheld.

Association of Radio and Television Engineering

Employees and Ors. v. Union of India and Ors. ....... 180

— Article 227—Initial Landlord VD had executed registered

relinquishment deed in favour of petitioner and this fact

intimated to tenant—Rent cheque sent to VD was not

encashed as change of status of landlord had already been

intimated to tenant—After serving legal notice, eviction petition

was filed claiming tenant had defaulted for three consecutive

months in payment of rent which was payable in advance—

Additional Rent Controller (ARC) passed eviction order in

favour of petitioner—Rent Control Tribunal (RCT) in appeal

set aside order of ARC—Order challenged in High Court—

Plea taken, order of RCT holding that petitioner had never

averred that rent is payable in advance is dislodged by

averments made in eviction petition where it is specifically

averred that rent for each month was payable in advance—If

tenant was confused about actual person to whom rent has

to be paid, rent should have been deposited by tenant in Court

of ARC—Per contra plea taken, Writ Court is not Appellate

Court and should not interfere with order of Court below—

Rent was not payable in advance—Rent for one month was

given to VD under impression that she continues to be

landlady—Cheque given to VD was not sent back—Even if

rent was payable in advance, there were no three consecutive

defaults—Held—Purpose of supervisory jurisdiction under

Article 227 of the Constitution is for keeping Subordinate

Courts within bounds of their jurisdiction—Where Subordinate

Court exercises jurisdiction in a manner not permitted by law,

High Court may step in to exercise its supervisory

jurisdiction—It is clearly averred in legal notice that rent was

payable in advance, no reply having been furnished is implied

admission—Even assuming that rent fell due on last date of

month, on date of receipt of notice rent for three consecutive

months was due, payable and recoverable from tenant—Rent

which has been deposited somewhere else is no ‘tender’ of

rent and would amount to non payment of rent—If tenant

wishes to avail of beneficial legislation of DRCA in order to

seek a protection under its cover he ought to strictly follow

procedure contained therein—If tenant was not sure about his

landlord, tenant was mandated to have deposited rent in Court

of Rent Controller—Tenant was guilty of having committed

three consecutive defaults—Order of RCT set aside.

Mr. Harsha Gupta v. M/s. Insulation & Electrical

Products (P) Ltd. ........................................................... 140

— Article 141—Assessing Officer (AO) rectified assessment

order on ground that deduction allowed in assessment order

was incorrect as loss suffered by assessee from export of

trading goods ought to have been adjusted against 90% of

export incentives and omission to do so in assessment order

3635

was a mistake apparent from record which needed

rectification—Appeal of assessee dismissed by CIT

(Appeals)—Income Tax Appellate Tribunal (ITAT) allowed

appeal of assessee holding that rectification order passed by

AO amounted to review of his own assessment order and that

there was no glaring, patent or obvious mistake apparent from

record—Revenue filed appeal before High Court—Held—Loss

suffered by assessee in export of trading goods is to be

adjusted against export incentive, has been settled in favour

of Revenue by Supreme Court in case of IPCA Laboratory

Ltd.—Non consideration of judgment of Supreme Court and

non application of ratio of said judgment to facts of present

case, with reference to claim of assessee under Section

80HHC, is a glaring, patent and obvious mistake of law which

can be rectified by resort to Section 154 of Act—There is no

dispute regarding facts and no further investigation was

required to gather any more facts—On admitted facts,

applicability of judgment of Supreme Court was not capable

of generating any elaborate or long drawn process of

argument—Decision of Tribunal reversed.

The Commissioner of Income Tax-X v. Satish Kumar

Agarwal ........................................................................... 355

— Article 14— General Clauses Act, 1897—Section 3 (42)—

Respondent sought information of agreement/settlement

between appellant and one AL—Public Information Officer

(PIO) rejected application stating that information had no

relationship to any public activity or interest—First appellate

authority affirmed order of PIO—Central Information

Commissioner (CIC) allowed appeal of respondent and

directed appellant to provide information as available on

record—Order challenged in High Court—Plea taken,

petitioner a juristic entity is “person” in law—Fundamental

rights guaranteed by Constitution of India are available not only

to individual but also to juristic person—CIC is wrong in its

conclusion that “personal information” can only relate to

individual —Per contra plea taken, petitioner being a public

authority, every citizen is entitled to seek information in

relation to its public activities and conduct—Rule is in favour

of disclosure of information—Held—Expression “Personal

information” used in Act does not relate to information

pertaining to public authority to whom query for disclosure

of information is directed—No public authority can claim

that any information held by it is “personal”—There is

nothing “personal” about any information, or thing held by

public authority in relation to itself—Expression “personal

information” used in Act means information personal to any

other “person” that public authority may hold—It is that

information pertaining to that other person which public

authority may refuse to disclose, if that information has no

relationship to any public activity or interest vis-a-vis public

authority or which would cause unwarranted invasion of

privacy of individual—If interpretation as suggested by

petitioner were to be adopted, it would completely destroy

very purpose of Act as every public authority would claim

information relating to it and relating to its affairs as

“personal information” and deny its disclosure—Act of

entering into agreement with any other person/entity by a

public authority would be public activity—Every citizen is

entitled to know on what terms agreement/settlement has

been reached by petitioner public authority with any other

entity or individual—There is no merit in petition.

Jamia Millia Islamia v. Sh. Ikramuddin ................. 398

— Article 226—The Foreigners Act, 1946—Section 3(2)—The

petition filed for seeking a declaration that the petitioner is

an Indian citizen by birth and directing the respondents to

treat him as an Indian national by birth—Also impugned the

order dated 13.04.2006 of his deportation from India and

seeks to restrain the respondent from taking any action

towards his deportation—Prior thereto also, an order dated

3837

05.05.1998 under Section 3(2) of the Foreigners Act, 1946

restraining the petitioner from remaining in India and directing

him to depart from India latest by 15.5.1998 was issued—

The same was challenged by the petitioner by filing Crl. W.P.

No. 397/1998 on the ground that he was born in Guwahati

on 13.01.1952; his father came from Pathtoonistan and his

mother died when he was just nine months old; that he made

an application with the authorities at Kamrup, Assam, for grant

of Indian citizenship; that the order of deportation was bad

since he was lawfully staying in india and since he was not

having citizenship or nationally in any other country and was

born, brought up, nurtured and had grown up in India—

Respondent pleaded that the petitioner was holding a Afghan

passport issued at Kabul; that he had however fraudulently

obtained an Indian passport issued at Guwahati; that he is a

kingpin in Hawala and Smuggling business and has amassed

wealth through illegal means; that the very fact that he had

applied for citizenship was indicative of his not being an Indian

citizen; that the ration card and other documents fraudulently

obtained by him by misrepresenting facts did not vest any

rights in him—The aforesaid Crl. W.P. No. 397/1998 was

disposed of vide judgment dated 21.08.1998 of the Division

Bench of this Court holding that the very fact that the petitioner

claims that he has applied for Indian citizenship was sufficient

to repel his contention that he was an Indian citizen; that no

material had been brought on record to show that he was born

in India; rather the material on record showed that in 1962,

he applied as a Pakhtoon national seeking permission to stay

in India; that there was no question of having acquired

citizenship by mere prolonged stay; that the very fact that he

sought permission as a foreigner to stay in India falsified his

stand of his being an Indian citizen; that he continued to be

a foreigner and had no right to stay in India. However, finding

that the order of deportation of the petitioner had been made

without hearing him, the writ petition was allowed, the order

of deportation set aside with liberty to the respondents to pass

a fresh order in accordance with law—Thereafter yet another

order dated 18.12.1998 was issued by the respondent

Foreigners Regional Registration Officer (FRRO) of

deportation of the petitioner. The same was again challenged

by the petitioner by filing Crl. Writ Petition No.1107/1998

which was again dismissed by Division Bench vide judgment

dated 17.02.1999. Held—Birth Certificate and the letter from

the Embassy of Afghanistan produced by petitioner are highly

suspect—Mere production thereof would not entitle the

petitioner to again seek an opportunity to establish his

citizenship of India—Relief claimed by the petitioner of

declaration that he is Indian citizen by birth is barred by the

principles of res judicata—This Court having already in the

Judgments in the earlier two writ petitions aforesaid preferred

by the petitioner having held the petitioner to be not an Indian

citizen, the Birth Certificate and the letter dated 16.01.2003

subsequently obtained by the petitioner do not relieve the

petitioner from the bar of res judicata—Unless there is a stay

of deportation of the petitioner, the respondents to deport the

petitioner immediately after the expiry of 60 days—The

petitioner is also burdened with costs of Rs. 50,000/- of these

petitions payable to the respondents within four weeks of

today.

Yaro Khan @ Ahmad Shah v. U.O.I. & Ors. .............. 90

— Article 226 and 227—Entitlement Rules for Casualty

Pensionary Awards, 1982—Rule 14 (b)—Clauses 5 & 6—

Pension Regulation, 173—Petitioner enrolled in the Indian

Army as combatant soldier—Attached to the regiment of

Artillery at Bikaner on 18.03.2005—Subjected to physical

endurance test and medical examination—Successfully

cleared—Served for about a year and 8 months—Detected

with abnormal behavior—Showed that he was having

hallucinations—Sent on leave for 20 days—On return showed

no improvement—Superior officers found that the petitioner

was having psychiatric problem—Petitioner produced before

4039

Psychiatrist—Petitioner hospitalized and kept under

observation—He was assessed as a case of Schizophrenia and

percentage of disability was assessed as 30%—Petitioner was

discharged from service w.e.f. 04.02.2007, after he had served

for 1 year, 10 months and 14 days—Petitioner applied for

disability pension on the ground of being placed in low medical

category resulting in his being invalidated from service—Claim

rejected on 06.07.2007 on the ground that disability was

neither attributable to nor aggravated by military service—Writ

petition no. 719/2008 filed—Disposed of with directions to

produce the petitioner before an Appeal Medical Board to

assess his disability and cause thereof—Appeal Medical Board

constituted—Assessed the disability of the petitioner to be 30%

for life and opined that since the petitioner was posted to a

peace station, disability was neither attributable nor aggravated

by military service—Disability could not be detected at the time

of enrolment as it was asymptomatic at the time—Aggrieved

by the opinion petitioner filed WP © no. 856/2009—That

petition was transferred for adjudication to the Armed Forces

Tribunal since the subject matter of claim fell within the

jurisdiction of the said Tribunal—Armed Forces Tribunal

dismissed the petitioner claim vide order dated 28.10.2009—

Present writ petition—Held—On the facts of instant case it

assumes importance to note that petitioner was enrolled on

18.3.2005 and he was admitted at the Army Hospital on

1.11.2006—Prior thereto this abnormal behaviour was

detected while he was serving—His abnormal behaviour was

detected within a year of his joining—Did not work in a

disturbed area and always posted in a peace area, no incident

took place when he was in service which could have triggered

Schizophrenia—The small time gap between service being

joined and abnormal behaviour being detected cannot be lightly

brushed aside—It is not the case of petitioner that something

happened while in service which made him a patient of

Schizophrenia—As noted by us, the argument was advanced

on the strength of para (a) of clause 5 of the Entitlement Rules

for Casualty Pensionary Awards 1982 and learned counsel was

at pains to urge that the benefit of the presumption envisaged

by said para would mean that unless there was proof that the

Schizophrenia suffered by the petitioner was not attributable

to military service, he had the benefit of the presumption that

it was—The argument has ignored para (b) of clause 14 of

the Entitlement Rules for Casualty Pensionary Awards 1982

and the opinion of the Appeal Medical Board which observed

that the disability ‘could not be detected at the time of

enrolment as it was asymptomatic at the time.’ Thus, we

regretfully dismiss the writ petition but refrain from imposing

costs.

Ex. GNR. Naresh Kumar v. Union of India

& Ors. ............................................................................. 156

— Article 227—Hindu Marriage Act, 1955—Section 13(1) (ia)

and 24—Code of Civil Procedure, 1908—Order X and Order

XXI Rule 41 (2)—Application for grant of interim maintenance

during pendency of divorce petition dismissed on ground that

petitioner has nowhere stated that she is not earning anything

or income earned by her is not sufficient for her to support

herself—Order challenged before High Court—Plea taken,

merely because petitioner in her application did not specifically

plead that she was not having any independent income for her

sustenance, it should not have deprived petitioner of grant of

interim maintenance as from total reading of averments made

by her in divorce petition it was manifest she had stated that

she was financially dependent on her parents which would

mean she had no independent source of income—Held—A

mere omission on part of petitioner to plead that she has no

independent source of income cannot deny her relief of interim

maintenance—Family Court should have given fresh

opportunity to petitioner to file a fresh affidavit disclosing her

income and her exact financial status and even Court had

ample powers to take statements of parties under Order X of

CPC and even parties could have been directed to file affidavit

4241

in terms of Form No. 16A Appendix E under Order XXI Rule

41 (2) CPC—Approach adopted by learned Family Court is

totally insensitive which is not expected of a Court charging

functions of a Family Court where more humane and sensitive

approach in required—Matter remanded back for fresh

decision—Petitioner directed to file a better affidavit disclosing

her correct financial status in said affidavit—Petition disposed

of.


CUSTOMS ACT, 1962—Section 120—Respondents were

apprehended on their arrival IGI Airport on suspicion of

carrying some contraband substance—Notice under Section

50 of The Act and under Section 120 of Customs Act served

upon them giving them an option to get themselves and their

baggage searched before Gazetted Officer of Customs or a

Magistrate—Respondents did not know either Hindi or English

language, thus an official from KAM Airlines who knew

language of Respondents, explained contents of notices to

them—On Knowing contents, Respondents opted search by

Custom Officer—On search of baggage, Heroin was found

concealed in bottom portion of bag in cotton cloth belt—After

fulfilling requirements of Act, Respondents were charge

sheeted for offences punishable under Section 21, 23 & 28

of Act—On conclusion of trial, they were acquitted after

finding lacunas in prosecution case and procedural safeguards

contained in Section 50 of Act were not adhered to—Appellant

challenged acquittal in appeal—It was urged on behalf of

appellant that notice under Section 50 of Act was not required

to be served upon Respondents as recovery was effected

from hand bag and not from his person—Held:- Provisions

of Section 50 of NDPS Act, are mandatory and non

compliance renders recovery of illicit article suspect—Thus,

non compliance of these provisions is viewed seriously and

adverse inference is drawn against prosecution, particulary,

when accused has denied that he has served any such notice

and it has created doubt with regard to truthfulness of

prosecution witnesses.


DELHI MUNICIPAL CORPORATION ACT, 1957—Section


























DELHI RENT CONTROL ACT, 1958—Section 25B, 14(1)(e)—

Code of Civil Procedure, 1908—Order VI Rule 17—Eviction

petition by respondent seeking eviction of petitioner from

ground floor of premises bearing no. 138-A, Golf Links, New

Delhi, on the ground of bonafide requirement for residence

43 44

of its Director Amit Deep Kohli—Leave to defend filed on

23.07.10—Application seeking amendment of the leave to

defend filed on 09.05.2011—Amit Deep Kohli is a Director

in other holding companies of the petitioner—Other properties

available with Company for residence—Tenant is an old lady

staying alone—Petitioner submitted, Landlord was a

construction company carrying on construction activity—

Other properties were commercial flats not part of Delhi—

Application seeking leave to defend dismissed—Petition—

Held—The facts which were sought to be incorporated by

amendment i.e. that the landlord Company was a part of a

huge Real Estate Group of Companies having several

properties in their name were all facts known to the tenant—

These facts were pre-existing i.e. existing at the time when

the application for leave to defend was filed; if such an









(P) Ltd. ........................................................................... 558

— Section 14 (1)(e)—Eviction petition seeking eviction of tenant

under Section 14(1) (e) of DRC Act had been filed—

Application for leave to defend filed by tenant, dismissed—

Order challenged in High Court—Plea taken, a perusal of

summons clearly shows that there was a next date of hearing

mentioned therein which was noted as 08.09.2009—Tenant

was under a bona fide impression that he had to appear in

Court on 08.09.2009 which he did—This had led to confusion

in his mind which had been deliberately created which in turn

amounts to a fraud—Impugned order in these circumstances

not entertaining application for leave to defend to tenant holding

that it was filed beyond period of 15 day which period was

counted w.e.f. 18.07.2009 suffers from a clear infirmity—

Per contra plea taken, application for leave to defend has not

been filed within stipulated period—Averments made in

eviction petition are deemed to be admitted and landlord is

entitled to a decree forthwith—Held—Summons sent to

petitioner are in format which has been prescribed in third

schedule of DRC Act—Name description, place of residence

of tenant had been mentioned in these summons—Next date

of 08.09.2009 written on top of summons states that it is next

date of hearing—That does not take away text of what is

contained in body of summons which clearly informed tenant

that he must, on affidavit within 15 days of receipt of these

summons, file application for leave to contest eviction petition

failing which eviction petition shall stand decreed in favour

of applicant/landlord—Along with these summons eviction

petition had also been served upon petitioner—Summons sent

cannot be said to be fraud which has been committed by

petitioner—Petition without any merit.

Punjab Bearing Traders v. Mohammad Jameel

Khan Lodhi ..................................................................... 378

— Section 6(A), 8, 14, (1) (a), 14(2), 15(2), 26 and 27—

Constitution of India, 1950—Article 227—Initial Landlord VD

had executed registered relinquishment deed in favour of

petitioner and this fact intimated to tenant—Rent cheque sent

to VD was not encashed as change of status of landlord had

already been intimated to tenant—After serving legal notice,

eviction petition was filed claiming tenant had defaulted for

three consecutive months in payment of rent which was

payable in advance—Additional Rent Controller (ARC) passed

eviction order in favour of petitioner—Rent Control Tribunal

(RCT) in appeal set aside order of ARC—Order challenged

in High Court—Plea taken, order of RCT holding that petitioner

had never averred that rent is payable in advance is dislodged

by averments made in eviction petition where it is specifically

4645

averred that rent for each month was payable in advance—If

tenant was confused about actual person to whom rent has

to be paid, rent should have been deposited by tenant in Court

of ARC—Per contra plea taken, Writ Court is not Appellate

Court and should not interfere with order of Court below—

Rent was not payable in advance—Rent for one month was

given to VD under impression that she continues to be

landlady—Cheque given to VD was not sent back—Even if

rent was payable in advance, there were no three consecutive

defaults—Held—Purpose of supervisory jurisdiction under

Article 227 of the Constitution is for keeping Subordinate

Courts within bounds of their jurisdiction—Where Subordinate

Court exercises jurisdiction in a manner not permitted by law,

High Court may step in to exercise its supervisory

jurisdiction—It is clearly averred in legal notice that rent was

payable in advance, no reply having been furnished is implied

admission—Even assuming that rent fell due on last date of

month, on date of receipt of notice rent for three consecutive

months was due, payable and recoverable from tenant—Rent

which has been deposited somewhere else is no ‘tender’ of

rent and would amount to non payment of rent—If tenant

wishes to avail of beneficial legislation of DRCA in order to

seek a protection under its cover he ought to strictly follow

procedure contained therein—If tenant was not sure about his

landlord, tenant was mandated to have deposited rent in Court

of Rent Controller—Tenant was guilty of having committed

three consecutive defaults—Order of RCT set aside.

Mr. Harsha Gupta v. M/s. Insulation & Electrical Products

(P) Ltd. ........................................................................... 140

THE FOREIGNERS ACT, 1946—Section 3(2)—The petition

filed for seeking a declaration that the petitioner is an Indian

citizen by birth and directing the respondents to treat him as

an Indian national by birth—Also impugned the order dated

13.04.2006 of his deportation from India and seeks to restrain

the respondent from taking any action towards his

deportation—Prior thereto also, an order dated 05.05.1998

under Section 3(2) of the Foreigners Act, 1946 restraining the

petitioner from remaining in India and directing him to depart

from India latest by 15.5.1998 was issued—The same was

challenged by the petitioner by filing Crl. W.P. No. 397/1998

on the ground that he was born in Guwahati on 13.01.1952;

his father came from Pathtoonistan and his mother died when

he was just nine months old; that he made an application with

the authorities at Kamrup, Assam, for grant of Indian

citizenship; that the order of deportation was bad since he was

lawfully staying in india and since he was not having citizenship

or nationally in any other country and was born, brought up,

nurtured and had grown up in India—Respondent pleaded that

the petitioner was holding a Afghan passport issued at Kabul;

that he had however fraudulently obtained an Indian passport

issued at Guwahati; that he is a kingpin in Hawala and

Smuggling business and has amassed wealth through illegal

means; that the very fact that he had applied for citizenship

was indicative of his not being an Indian citizen; that the ration

card and other documents fraudulently obtained by him by

misrepresenting facts did not vest any rights in him—The

aforesaid Crl. W.P. No. 397/1998 was disposed of vide

judgment dated 21.08.1998 of the Division Bench of this Court

holding that the very fact that the petitioner claims that he has

applied for Indian citizenship was sufficient to repel his

contention that he was an Indian citizen; that no material had

been brought on record to show that he was born in India;

rather the material on record showed that in 1962, he applied

as a Pakhtoon national seeking permission to stay in India;

that there was no question of having acquired citizenship by

mere prolonged stay; that the very fact that he sought

permission as a foreigner to stay in India falsified his stand

of his being an Indian citizen; that he continued to be a

foreigner and had no right to stay in India. However, finding

that the order of deportation of the petitioner had been made

without hearing him, the writ petition was allowed, the order

4847

of deportation set aside with liberty to the respondents to pass

a fresh order in accordance with law—Thereafter yet another

order dated 18.12.1998 was issued by the respondent

Foreigners Regional Registration Officer (FRRO) of

deportation of the petitioner. The same was again challenged

by the petitioner by filing Crl. Writ Petition No.1107/1998

which was again dismissed by Division Bench vide judgment

dated 17.02.1999. Held—Birth Certificate and the letter from

the Embassy of Afghanistan produced by petitioner are highly

suspect—Mere production thereof would not entitle the

petitioner to again seek an opportunity to establish his

citizenship of India—Relief claimed by the petitioner of

declaration that he is Indian citizen by birth is barred by the

principles of res judicata—This Court having already in the

Judgments in the earlier two writ petitions aforesaid preferred

by the petitioner having held the petitioner to be not an Indian

citizen, the Birth Certificate and the letter dated 16.01.2003

subsequently obtained by the petitioner do not relieve the

petitioner from the bar of res judicata—Unless there is a stay

of deportation of the petitioner, the respondents to deport the

petitioner immediately after the expiry of 60 days—The

petitioner is also burdened with costs of Rs. 50,000/- of these

petitions payable to the respondents within four weeks of

today.

Yaro Khan @ Ahmad Shah v. U.O.I. & Ors. .............. 90

HINDU ADOPTION AND MAINTENANCE ACT, 1956—

Section 18—Code of Criminal Procedure, 1973—Section

125—Order of Trial Court whereby a decree of divorce under

Section 13(2) (iii) of Hindu Marriage Act was passed,

challenged in appeal before High Court—Plea taken, order

passed under Section 125 of Cr. PC was interim order and

based on that, Matrimonial Court could not have granted

decree of divorce—Order which gives a right to wife to seek

divorce is a final and not interim order—Held—A bare look

at Section 13(2) (iii) would manifest intention of legislature

as two separate expressions have been used in said Section

i.e. ‘decree’ and ‘order’ which would necessarily mean either

interim or final order—Intention of legislature is to give a right

to wife to invoke said provision in case where even interim

order has been passed in proceedings under Section 18 of

H.M. Act of Section 125 of Cr. PC—If contention of counsel

for appellant is accepted then purpose of section would be

negated as wife who seeks a decree of divorce under said

Section would have to wait till a final order under Section 18

or Section 125 is passed which would certainly mean insisting

on inevitably long waiting period which is not object of this

Section—No merits in appeal which is hereby dismissed.


HINDU MARRIAGE ACT, 1955—Section 24—Respondent

contested application under Section 24 pleading that he was

unemployed while petitioner was earning Rs. 3,00,000/- per

month—Trial Court observed that there was no material on

record to show that respondent had any income and dismissed

application—Held, parties do not truthfully reveal their income

and as such, both the parties were directed to file affidavits

of their assets, income and expenditure from the date of

marriage till date, containing the particulars elaborately enlisted

in the order itself and to file documents of assets and liabilities

enlisted in the order itself—Factors to be considered for

assessing income of spouse enumerated.

Puneet Kaur v. Inderjit Singh Sawhney ......................... 73

— Section 13(1) (ia), 13(2) (iii) and 28—Code of Civil Procedure,

1908—Order VII Rule 11 and Section 151—Hindu Adoption

and Maintenance Act, 1956—Section 18—Code of Criminal

Procedure, 1973—Section 125—Order of Trial Court whereby

a decree of divorce under Section 13(2) (iii) of Hindu Marriage

Act was passed, challenged in appeal before High Court—Plea

taken, order passed under Section 125 of Cr. PC was interim

order and based on that, Matrimonial Court could not have

5049

granted decree of divorce—Order which gives a right to wife

to seek divorce is a final and not interim order—Held—A bare

look at Section 13(2) (iii) would manifest intention of

legislature as two separate expressions have been used in said

Section i.e. ‘decree’ and ‘order’ which would necessarily

mean either interim or final order—Intention of legislature is

to give a right to wife to invoke said provision in case where

even interim order has been passed in proceedings under

Section 18 of H.M. Act of Section 125 of Cr. PC—If

contention of counsel for appellant is accepted then purpose

of section would be negated as wife who seeks a decree of

divorce under said Section would have to wait till a final order

under Section 18 or Section 125 is passed which would

certainly mean insisting on inevitably long waiting period which

is not object of this Section—No merits in appeal which is

hereby dismissed.


— Section 13(1) (ia) and 24—Code of Civil Procedure, 1908—

Order X and Order XXI Rule 41 (2)—Application for grant

of interim maintenance during pendency of divorce petition

dismissed on ground that petitioner has nowhere stated that

she is not earning anything or income earned by her is not

sufficient for her to support herself—Order challenged before

High Court—Plea taken, merely because petitioner in her

application did not specifically plead that she was not having

any independent income for her sustenance, it should not have

deprived petitioner of grant of interim maintenance as from

total reading of averments made by her in divorce petition it

was manifest she had stated that she was financially

dependent on her parents which would mean she had no

independent source of income—Held—A mere omission on

part of petitioner to plead that she has no independent source

of income cannot deny her relief of interim maintenance—

Family Court should have given fresh opportunity to petitioner

to file a fresh affidavit disclosing her income and her exact

financial status and even Court had ample powers to take

statements of parties under Order X of CPC and even parties

could have been directed to file affidavit in terms of Form

No. 16A Appendix E under Order XXI Rule 41 (2) CPC—

Approach adopted by learned Family Court is totally insensitive

which is not expected of a Court charging functions of a

Family Court where more humane and sensitive approach in

required—Matter remanded back for fresh decision—Petitioner

directed to file a better affidavit disclosing her correct financial

status in said affidavit—Petition disposed of.


INCOME TAX ACT, 1961—Section, 80HHC, 143(3), 154, 254

(2), 260A—Constitution of India, 1950—Article 141—

Assessing Officer (AO) rectified assessment order on ground

that deduction allowed in assessment order was incorrect as

loss suffered by assessee from export of trading goods ought

to have been adjusted against 90% of export incentives and

omission to do so in assessment order was a mistake apparent

from record which needed rectification—Appeal of assessee

dismissed by CIT (Appeals)—Income Tax Appellate Tribunal

(ITAT) allowed appeal of assessee holding that rectification

order passed by AO amounted to review of his own

assessment order and that there was no glaring, patent or

obvious mistake apparent from record—Revenue filed appeal

before High Court—Held—Loss suffered by assessee in export

of trading goods is to be adjusted against export incentive,

has been settled in favour of Revenue by Supreme Court in

case of IPCA Laboratory Ltd.—Non consideration of

judgment of Supreme Court and non application of ratio of

said judgment to facts of present case, with reference to claim

of assessee under Section 80HHC, is a glaring, patent and

obvious mistake of law which can be rectified by resort to

Section 154 of Act—There is no dispute regarding facts and

no further investigation was required to gather any more

facts—On admitted facts, applicability of judgment of Supreme

51 52

Court was not capable of generating any elaborate or long

drawn process of argument—Decision of Tribunal reversed.

The Commissioner of Income Tax-X v. Satish Kumar

Agarwal ........................................................................... 355

— Section 5(2), 9(1) (i) 40(a) (i) (ia), 195 and 260A—Assessee

had paid commission to its parent company on sales and

amounts realized on export contracts procured by patent

company for respondent assessee—Assessing Officer (AO)

held parent company had business connection with respondent

assessee in India and liable to be taxed in India of portion that

accrues or arises in India—Income Tax Appellate Tribunal

(ITAT) upheld order of C.I.T. (A) deleting addition of

commission income made by AO—Order challenged before

High Court—Plea taken, commission income earned by parent

company had accrued in India or was deemed to accrue in

India and therefore respondent assessee was liable to deduct

tax at source and as there was failure, said expenditure should

be disallowed—Held—AO was required to examine whether

commission income is accruing or arising directly or indirectly

from any business connection in India—Test which is to be

applied is to examine activities in India and whether said

activities have contributed to business income earned by non

resident, which has accrued, arisen or received outside India—

Business connection must be real and intimate from which

income had arisen directly or indirectly—Question of business

connection has to be decided on facts found by AO or in

appellate proceedings—Facts found by AO do not make out

a case of business connection—Appellate authorities have

rightly held that “business connection” is not established—

Appeal dismissed.

The Commissioner of Income Tax Delhi-IV, New Delhi v.

EON Technology P. Limited.......................................... 363

— Section 260A—Assessee a limited company engaged, inter-

alia, in the business of investment in shares—Assessee debited

loss on sale of shares amounting to Rs. 1,34,06,274/- as

business loss—Assessee submited, it was an investment

company and investing in shares of other companies, was its

main business—Any Profit and loss on sale of shares

accounted for business loss—AO was of the view that even

an investment company could hold shares either as stock-in-

trade or as an investment—In which particular segment

assessee was holding particular shares would depend upon the

initial purchase as that would reflect the intention of the

Company to this effect—Assessing Officer rejected the

contention of the assessee, on the grounds assessee has been

consistenly showing these shares as investment in the Balance

sheet filed with the returns of income—From the date of its

purchase in 1997 till sold in 2004 there was no transaction of

sale of these shares—Order of Assessing Officer affirmed

by CIT(A)—Tribunal, however, allowed the appeal treating

the sale of shares as business income taking into consideration

first that sale of shares in earlier assessment year had been

credited in revenue account of the assessee and second

revenue had accepted this position in Assessment Year 2003-

04—Held, as per Memorandum / Articles of Association

investment in shares was one of the main objectives of the

Company—Shares in question were alway shown as

investment—Shares were treated as investment in every year

till there sale in the Blance Sheet—Assessee was maintaining

two portfolios, one was the investment portfolio and the other

was the business portfolio—The shares in question were show

in the investment portfolio—Once these factors are taken into

account merely because in the previous year the sales

transaction was reflected in the Profit & Loss Account and

was not detected by the Assessing Officer, would not be

sufficient to upset the findings of the Assessing Officer based

on over all appreciation of facts—Appeal allowed.


Leasing & Capital Services Ltd. .................................. 684

5453

— Section 260A—Assessee a private limited company—

Assessing Offiicer while computing assessment u/s 143(3)

made observation that assessee received share application

money in cash from three private limited company in violation

of section 269SS and therefore, should be treated as deposits

and as a consequence of that liable for penalty under Section

271D—Plea raised by the assessee that the share application

monies received by the Company pending allotment of shares

do not amount to loan or deposit, accepted by CIT(A) and

Tribunal—Appeal preferred by Revenue—Held, there is a

distinction between loan and the deposit—In case of loan

ordinarily the duty of the debtor is to seek out the creditor

and to repay the money—A loan grants temporary use of

money or temporary accommodation, whereas in case of

deposits it is generally the duty of the depositor to go to the

bank or the depositee and make a demand for it and the

essence of the deposit is that there must be a liability to return

it the party by whom the deposit was made on fulfillment of

certain conditions—Receipt of share of application monies

from the three private limited companies for allotment of

shares in the assessee company cannot be treated as receipt

of loan or deposit—Appeal declined to be admitted.

The Commissioner of Income Tax Delhi IV v.

I.P. India Pvt. Ltd. ....................................................... 699

INDIAN CONTRACT ACT, 1872—Section 74—Suit of







decreed.


INDIAN EVIDENCE ACT, 1873—Section 137, 138—Appellants

Jayant, Yashpal, Sanjay Singh Rathi, Devender challenged their

conviction under Section 365/396 IPC; Appellant Manju

Kumar was aggrieved of his conviction under Section 412

IPC—Besides raising various grounds, appellant Jayant also

raised technical objection qua admissibility of testimony of

PW4—He urged that though his Advocate gave consent for

admitting examination in chief of PW4 recorded prior to his

trial but same was violative of Section 137 & 138 Evidence

Act—Held:- Whenever an accused subsequently joins the trial

it was necessary to examine witness/witnesses already

examined afresh—Of course, an accused could give an option

that any particular witness need not be recalled for examination

provided the prosecution did not want to prove any particular

fact against the additional accused who joined the trial later

on—But if such accused failed to show that due to non

recording of examination in chief of prosecution witness after

he joined the trial afresh caused prejudice to him, he could

not be permitted to make a grievance about it if his counsel

had given a consent to read the examination-in-chief previously

recorded.

Manju Kumar v. State N.C.T. of Delhi ....................... 271

INDIAN PENAL CODE, 1860—Section 402, 406, 506—Code

of Criminal Procedure, 1973-204, 256—Respondent filed

complaint under Section 402, 406, 506 IPC against petitioner—

In pre Summoning evidence, he examined himself and one

more witness who was not named in list of witnesses as his

witness—Summoning order was passed by learned

Metropolitan Magistrate and case was listed for pre-

Summoning evidence—Aggrieved by summoning order,

petitioner challenged it and urged, one of the witness namely

Sh. Raj Singh examined at pre summoning stage, was not

named in list of witnesses which caused injustice to



5655





— Section 379, 34—Code of Criminal Procedure, 1973—

Section—313—Petitioner convicted under Section 379/34 IPC
























— Sections 302, 34—Appellant convicted for having committed

murder of one Sh. Saual—Prosecution case rested on

circumstantial evidence i.e. last seen evidence, recovery of

weapon of offence, recovery of sleepers (Chappals) of

deceased worn by him at the time of incident and blood stained

Baniyan of one of appellant—It was urged on behalf of

appellants “last seen” circumstance not proved as deceased

was allegedly taken away by appellants around 4:30 p.m. but

his body found on next date morning around 7 a.m. the time

gap was large being 12 hours and during this time possibility

of any other perpetrator of crime other than appellants cannot

be ruled out—Held:- Last seen theory comes into play where

the time-gap between the point of time when the accused and

the deceased were seen last alive and the deceased is found

dead is so small that possibility of any preson other than the

accused being the author of the crime becomes impossible—

Testimony of prosecution witness not conclusive as regard

to last seen theory.

Raju @ Ranthu @ Raju Kumar, Sanjay Kumar v.

State ................................................................................. 736

— Sections 302—Appellants challenged their conviction under

Section 302/34 IPC urging, dying declaration made sole basis

of conviction, was unbelievable—Held: Court can rely on

dying declarations to convict an accused. But dying declaration

should “inspire full confidence of the Court in its truthfulness

and correctness. The Court, however, has always to be on

guard to see that the statement of the deceased was not as a

result of either tutoring or prompting or a product of

imagination.

Baljeet Verma and Smt. Babli v. State ....................... 110

— Section 34, 302, 304—Appeal preferred against judgment

convicting appellant under Section 302/34 IPC—As per

appellant, he was impleaded in false case and everything was

manipulated to help complainant to falsely implicate him—

Moreover, single blow inflicted on deceased which landed on

the abdomen causing her death not covered under Section 302

but could only be under Section 304 Part II as appellant did

not have any intention to cause death—Held:- There is no rule

of universal application that whenever one blow is given

5857

section 300 IPC is ruled out—It would depend upon the facts

of each case; the weapon used, size of the weapon, place

where the assault took place, background facts leading to the

assault, part of the body where the blow was given, are some

of the factors which can be considered by the Court to form

an opinion whether the case would fall under Section 304 or

302 IPC—Appellant entitled to benefit of Exception IV to

Section 300 IPC—Conviction altered to one under Section 304

Part II, IPC.

Ram Parshad v. State .................................................... 194

— Section 302—Appeal preferred against judgment convicting

appellant under Section 302/34 IPC—Appellant urged he is

covered under Exception 4 to Section 300 IPC as injury was

inflicted without pre-meditation in a sudden fight in the heat

of passion, upon a sudden quarrel—Held:- A ‘sudden fight’

implies mutual provocation and blows on each side. The

homicide committed is then clearly not traceable to unilateral

provocation, nor could in such cases the whole blame be

placed on one side. For if it were so, the exception more

appropriately applicable would be Exception 1. There is no

previous deliberation or determination to fight. A fight suddenly

takes place, for which both parties are more or less to be

blamed. It may be that one of them starts it, but if the other

hand not aggravated it by his own conduct it would not have

taken the serious turn it did. There is thus, mutual provocation

and aggravation, and it is difficult to apportion the share of

blame which attaches to each fighter.

Ram Parshad v. State .................................................... 194

— Section 186, 353, 506, 34—Criminal Procedure Code, 1973—

Sections 155, 195, 482—Drugs & Narcotics Act, 1940—

Section 22, 32—FIR for offences punishable under Section

186/353/506/34 IPC registered in Police Station Defence

Colony on statement of Drug Inspector alleging, on

21.08.2003 at about 4 p.m., he along with his colleagues as

part of their official duty visited premises M/s Shiv Store,

Defence Colony Market, New Delhi—Three persons present

in shop prevented Inspector from inspecting and examining

purchase and sale records, they physically pushed him out of

the shop and threatened him by using abusive language—Thus,

FIR lodged on complaint by Drug Inspector—Accused persons

arrested and bailed out—Subsequently during further

investigation Section 22(3) Drugs & Cosmetics Act added and

learned Metropolitan Magistrate took cognizance on charge

sheet—Petitioner challenged cognizance and urged Section 186

IPC is non cognizable therefore police had no power to register

and investigate case without prior permission of concerned

Metropolitan Magistrate—Held:- Proceedings for an offence

punishable under Section 186 IPC could not be put into motion

without a formal complaint lodged with the Court concerned

by the public servant who had been obstructed in discharge

of his public duties or against whom an offence is

committed—The proceedings under Section 186 IPC quashed

and for remaining offences the trial court was directed to

proceed as per law.

Shiv Charan & Ors. v. State ........................................ 211

— Section 302, 365, 201—Aggrieved appellants on their

conviction for having abducted & Murdered one Vijay Kumar

and thereafter concealing deadbody, preferred appeals—They

urged, chain of circumstantial evidence not completed, identity

of deadbody doubtful, motive not established by prosecution,

thus, their conviction is bad in law—Held:- The well known

rules governing circumstantial evidence are that:- (a) the

circumstances from which the inference of guilt of the accused

is drawn have to be proved beyond reasonable doubt and have

to be shown to be closely connected with the principal fact

sought to be inferred from those circumstances; (b) the

circumstances should be of a determinative tendency

unerringly pointing towards the guilt of the accused; and (c)

the circumstances, taken collectively, are incapable of leading

to any conclusion, on a reasonable hypothesis, other than that

6059

of the guilt of the accused—Prosecution established

circumstances against appellant Sapna Talwar and Stayajit @

Lovely for having committed offences under Section 302 read

with Section 120B and 201 IPC, but prosecution could not

establish charge under Section 365 IPC—Missing links found

against appellant Yunus who acquitted of false charges.

Sapna Talwar & Anr. v. State ...................................... 224

— Section 365, 396, 412—Indian Evidence Act, 1873—Section

137, 138—Appellants Jayant, Yashpal, Sanjay Singh Rathi,

Devender challenged their conviction under Section 365/396

IPC; Appellant Manju Kumar was aggrieved of his conviction

under Section 412 IPC—Besides raising various grounds,

appellant Jayant also raised technical objection qua admissibility

of testimony of PW4—He urged that though his Advocate

gave consent for admitting examination in chief of PW4

recorded prior to his trial but same was violative of Section

137 & 138 Evidence Act—Held:- Whenever an accused

subsequently joins the trial it was necessary to examine

witness/witnesses already examined afresh—Of course, an

accused could give an option that any particular witness need

not be recalled for examination provided the prosecution did

not want to prove any particular fact against the additional

accused who joined the trial later on—But if such accused

failed to show that due to non recording of examination in

chief of prosecution witness after he joined the trial afresh

caused prejudice to him, he could not be permitted to make a

grievance about it if his counsel had given a consent to read

the examination-in-chief previously recorded.

Manju Kumar v. State N.C.T. of Delhi ....................... 271

— Section 279, 304A—Petitioner sought setting aside of order

upholding his conviction passed by trial Court for having

driven the vehicle i.e. bus in rash and negligent manner,

without waiting for passenger to get down which resulted

death of passenger who fell down—Petitioner urged, that

neither deceased nor his brother had informed driver of bus

that they intended to get down—Also, deceased did not get

down at bus stop and was himself guilty of violating traffic

rules—Held:- A rash act is primarily an over hasty act—It is

opposed to a deliberate act. Still, a rash act can be a deliberate

act in the sense that it was done without due care and

caution—Culpable rashness lies in running the risk of doing

an act with recklessness and with indifference as to the

consequences. Criminal negligence is the failure to exercise

duty with reasonable and proper care and precaution guarding

against injury to the public generally or to any individual in

particular. It is the imperative duty of the driver of a vehicle

to adopt such reasonable and proper care and precaution—

Petitioner had stopped bus at red light signal which turned to

green immediately and he drove bus at a speed of 10 kmph—

But deceased got down from bus without informing him—

He carried something in his both hands, he fell down from

bus as he jumped from moving bus—Thus, driver not rash

& negligent in driving bus.

Devender v. State ........................................................... 299

— Sections 302, 304 Part II—Appellant convicted for murder

of his neighbour Rampal on basis of dying declaration of

deceased and testimony of eye witnesses—Appellant

challenged his conviction—As per prosecution, on day of

incident appellant quarrelled with his family members under

influence of liquor—His wife and mother raised alarm as he

threatened to set himself on fire—Deceased went to his house

and saw appellant having plastic bottle containing petrol which

deceased tried to snatch—In struggle, petrol spilled over

deceased as well as on floor—Appellant pushed deceased and

bolted door, he lit match stick, threw it on deceased and ran

away—Deceased sustained fire injuries and succumbed to

injuries after two days—Appellant urged testimony of eye

witness not reliable and even if dying declaration to be

believed, it was at most, case of conviction under Section

304 Part II and not conviction under Section 302 IPC—Held:-

6261

To prove conviction under Section 302 IPC, a calculated or

pre-mediated intent on the part of person to kill deceased to

be proved—However, appellant possessed knowledge that his

act would result in such injuries on the deceased which in

normal course of nature would result in his death—Conviction

altered to be under Section 304 Part II IPC.

Amit Kumar v. State (Govt. of NCT of Delhi) .......... 388

— Sections 302, 201 and 34—Murder case—No eye witness—

Based upon circumstantial evidence of last seen and recovery

of material—Evidence of previous enmity and recovery of

blood smeared soil, earth control with other material like blood

smeared brick, blood smeared rope and other exhibits at the

instance of accused persons—Ld. ASJ held the appellants

guilty and convicted them for the offences punishable u/s 302/

201/34 IPC and sentenced—Appeal challenging that there are

material contradictions on all the important aspects—Possibility

of deceased having met with an accident cannot be ruled

out—Chain of circumstances not complete—Held—The well

known rule governing circumstantial evidence are that:- (a)

the circumstances from which the inference of guilt of the

accused is drawn have to be proved beyond reasonable doubt

and have to be shown to be closely connected with the principal

fact sought to be inferred from those circumstances; (b) the

circumstance should be of a determinative tendency unerringly

pointing towards collectively, are incapable of leading to any

conclusion, on a reasonable hypothesis, other than that of the

guilt of the accused—No doubt, the Courts have also added

two riders to the aforesaid principle namely, (i) there should

be no missing links but it is not that every one of the links

must appear on the surface of the evidence, since some of

these links can only be inferred from the proved facts and

(ii) it cannot be said that the prosecution must meet each and

every hypothesis put forward by the accused however far-

fetched and fanciful it may be.











of deceased met with an accident cannot be ruled out—Chain

of circumstances not complete—Held—It is a well established

legal principle that in a case based on circumstantial evidence

where an accused offers a false explanation in his statement

under Section 313 Cr. P.C. in respect of an established fact,

the said false denial could supply a missing link in the chain

of circumstances appearing against him.











of deceased met with an accident cannot be ruled out—Chain

of circumstance not complete—Held—From the evidence

provided by the prosecution, it is clear that the accused in

pre-planned manner committed murder of Ramesh Rai—The

evidence of the prosecution is trustworthy with respect of the

proof of motive as it has been proved on record that all

accused persons had earlier also assaulted the deceased on

the occasion of Holi in village—PW-7 Ranjeet Singh, an

independent witness, stated that at the instance of accused

6463

persons, blood stained shirt, T-shirt, blood stained brick affixed

with hair, rope etc were recovered—The recovery of the said

articles connected the accused persons with the crime and

proved the guilt beyond all reasonable doubt—There is

overwhelming circumstantial evidence to show that the

accused committed the crime—Appeals dismissed.


— Section 302—State preferred appeal against judgment

acquitting Respondent for having committed offence

punishable under Section 302 IPC—As Per prosecution, there

were frequent marital discord and quarrels between

Respondent and his deceased wife on account of meager

livelihood of Respondent—On the day of incident, deceased

asked Respondent if she could take up employment but

Respondent lost his control, he lifted a club and started

assaulting on her head which led to her death—Deceased told

prosecution witness in course of their journey to hospital in

PCR Van about the incident and clearly implicated her

husband—Also, in MLC it was recorded “alleged history of

assault by husband”—However, the said prosecution witness

did not support the prosecution during trial and instead deposed

that deceased fell and slipped down the stairs and thereby

sustained injuries—It was urged on behalf of State that trial

Court did not attach importance to significant facts i.e. MLC

categorically pointed out to homicidal death on account of

beatings given to deceased by husband—Post mortem report

and deposition of Doctor revealed that death could be caused

as result of injuries sustained on account of club blows—

These facts were sufficient enough to record a conviction—

Held:- In case of conflicting evidence about the nature of

injuries sustained by deceased and the medical evidence being

suggestive and not conclusive, acquittal is justified.

State v. Ram Palat ......................................................... 406

— Sections 201, 302, 34—State preferred appeal against

judgment acquitting Respondents for offences punishable

under Section 302/201/34 IPC—As per prosecution case,

accused Ram Kumar and deceased were friends—15/20 days

prior to incident accused went to house of deceased and made

grievance to his parents that deceased was having illicit

relations with his wife—He threatened to kill deceased if he

would not desist from continuing with relationship—On day

of incident, deceased seen in company of all the three accused

persons—Around 8:30 p.m., some police personnels, while

patrolling in same area, noticed some flames in open space

behind MCD Primary School and saw three persons running

from there—Those persons were chased and apprehended by

police who came to be known as the three accused persons

and they confessed the crime—At the time of apprehension,

accused Ram Kumar was found carrying dagger, accused

Shahid 5 litre petrol container and accused Sanjay purse

containing diary and match box—Prosecution case rested on

circumstantial evidence i.e. testimony of parents of deceased,

last seen evidence, apprehension of accused near place of

incidence with incriminating things—It was urged on behalf

of State that prosecution adduced strong circumstantial

evidence to prove guilt of accused persons—Held:- Where the

evidence is of circumstantial nature, the circumstances from

which the conclusion of guilt is to be drawn should in the

first instance be fully established and all the facts so established

should be consistent only with the hypothesis of the guilt of

the accused—There must be a chain of evidence so far

complete, as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and

it must be such as to show that within all human probability

the act must have been done by the accused—Prosecution

case if believed only raises suspicion that accused persons

must have been responsible for committing deceased’s

murder; the suspicion however strong cannot take place of

proof.

State v. Ram Kumar & Ors. ......................................... 442

6665

JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2000—Section 15, 16—Appellant/accused

was juvenile at the time of commission of murder, but suffered

imprisonment for over 10 years, which is three times the

maximum period prescribed under the Act—Not an appropriate

case to send the appellant to Juvenile Justice Board as the

same would be grave injustice—Conviction quashed.

Raju Chakravarthy v. State of NCT of Delhi ............. 638

— Section 15, 16—Appellant/accused was juvenile at the time

of commission of murder, but suffered imprisonment for over

10 years which is three time the maximum period prescribed

under the Act—Not an appropriate case to send the appellant

to Juvenile Justice Board as the same would be grave


conviction—Conviction upheld, sentence set aside and benefit

of Sec. 19 of the Act, granted.


LAND ACQUISITION ACT, 1894—Sections 4, 6 & 48—Land

measuring 80 bighas 7 biswas situated in village Rangpuri @

Malikpur Kohi (Vasant kunj) Tehsil Mehrauli notified under

section 4 and 6 of the Act vide notification dated 23.01.1965

and 26.12.1965 respectively followed by an award passed in

the year 1981—Petitioner alleged that possession of aforesaid

land was not taken by the Government—Land purcahse by

petitioner No. 3 Shri Ram Saroop Kuthuria as karta of HUF

vide sale deed dated 18th April 1967 executed by Smt. Saroop

devi, Smt. Sarjo and Smt. Bartho—Petitioner sought release

of land under Section 48—Petitioner claimed to be running a

school under the name and style of Kuthuria Public School

since 1988 on the said land—Representation moved on

17.08.1995 01.01.1996 and 11.11.1996—No response to the

representations—Petition seeking direction to direct the

respondents to decide the representations and not to demolish

any part of building—Respondent contended—Possession of

entire land taken except 9 Biswas where some built up

structure was found—Petitioner No.3 purchased the land after

notification under Section 4 of Act—Raised illegal construction

during pendency of earlier writ petition without any sanction

from the competent Authority—Representations were placed

before De-notification committee—Rejected—Petitioners have

no right—Held—Since De-notification Guidelines issued by the

Government do not permit de-notification of land in question,

which the petitioners purchased after issuance of notification

under Section 4 of Land Acquisition Act, no ground exist to

direct the Government either to de-notify this land or to re-

consider the representations of the petitioners—The writ

petition dismissed—The interim orders passed in favour of the

petitioners during pendency of the writ petition are vacated.

Kathuria Public School v. Union of India .................. 652

LIMITATION ACT, 1963—Section 5—Writ petition dismissed

in default on 03/05/11—Restoration applicant under Sec. 5 of

the Act—Application contended that his counsel expired in

June, 2003 and although son of the counsel had contacted

the petitioner, seeking instructions, but due to illness, the

petitioner residing in Punjab could not come to Delhi and

under these circumstances when the matter came up for

hearing on 03/05/2011, neither the petitioner nor his counsel

could appear which led to dismissal of writ petition in default—

Despite opportunity the respondents did not file reply—Held,

the applicant has been able to make out sufficient cause, so

both the applications allowed and writ petition restored.

EX. SI Lakhwinder Singh v. Union of India

& Ors. ............................................................................. 766

— Section 5—Suit for declaration and permanent injunction filed

for restraining the appellant from abolishing the suit property

and interfering in the peaceful possession—Trial Court vide

6867

judgment dated 01.05.2010 decreed the suit—Appellant filed

appeal after a delay of 78 days with application under Section

5 of limitation Act—Earlier counsel changed—New counsel

requested earlier counsel to hand over the record—Provided

only 26.06.10—Inspection report dated 07.01.2005 found

missing—Certified copy made available on 28.07.2010 Held—

The words 'sufficient cause as appearing in Section 5 of the

Limitation Act have to be construed liberally so as to advance

substantial justice to the parties; a litigant should not be shut

out at the threshold and be deprived of the opportunity to be

heard on merits; dealy may be condoned provided that the

applicant is able to furnish a sufficiently justifiable explanation

for his delay— No hard and fast rule can be laid down—Each

case has to be decided on its factual matrix—Unless there is

lack of bona fides or a total inaction or negligence on the part

of the litigant, the protection of Section 5 should not be

deprived to a party, mistake of a counsel may also amount to

a sufficient cause for condonation of delay; it is always a





set-aside.


KM Paramjit & Anr. ..................................................... 617

MOTOR VEHICLE ACT, 1988—Section 96 (2)(b)(ii)—Driving

licence of offending driver was valid upto 23.01.1988 and he

took the same from Court on 31.07.1989 for renewal, but in

the intervening period, the accident in question occurred on

16.07.1988—Tribunal exonerated the insurance company on

the ground that at the time of accident the offending driver

did not hold a valid driving licence—Appeal—Held, insurance

company connot be absolved of its liability to pay in the

absence of evidence on record to show that the offending

driver was disqualified from holding an effective driving

licence.

Ami Chand & Anr. v. Jai Prakash and Ors. ............. 460

— Appeal impugns order dated 24.03.2011 of the Motor

Accidents Claims Tribunal (MACT)—Appellant denied liability

as driver had no valid licenese at the time of accident and this

constituted a breach of policy condition as proved by the

insurance company—The compensation awarded under the

non-pecuniary head towards inconvenience, hardship,

discomfort frustration, mental stress and other compensation,

towards loss of amenities of life are challenged as being one

and the same. Held—The award of compensation under the

different heads by the Tribunal was fair in light of the injuries

suffered by the victim and the Court found no reason to

interfere with award.


& Ors. ............................................................................. 754

— Appellant sought enhancement of compensation in respect of

injuries suffered by him in a motor accident which led to

amputation—Appellant claimed that due to his injuries his

chances of promotion have been hampered and his

compensation was barely enough to cover his medical

expenses. Held—In assessing compensation during accident

cases, a reasonable and compassionate view must be taken

and the court must be liberal in determining quantum—

Compensation increased and accordingly appeal allowed.

Jaffar Abbas v. Mohan & Ors. ................................... 789

— Appellant seeks enhancement of compensation in respect of

deceased's re-employment and pension—The Tribunal had

determined that only the handicapped Appellant No. 3 was

dependent and not the husband and the son—Respondent No.

3 claimed that income tax was incorrectly taken and thus the

7069

compensation would differ. Held—Since the dependent by

deceased on herself was her handicapped daughter, the amount

spent on personal expenses would be less 1/3rd income instead

of 5% was liable to be deducted—Compensation calculated

accordingly—Further, income tax also deducted—Award

calculated. Amount accordingly.

Panna Lal & Ors. v. Anjit Kumar Jha & Ors. ......... 805

— 92-A and 110-A—Legal representatives of deceased Ramesh

Kumar, who died on 02.09.1984 filed a claim petition claiming

a sum of Rs. 10,00,000/-—Tribunal passed Award on

23.08.1991, wherein a sum of Rs. 1,44,000/- with interest at

the rate of 12% p.a. from the date of filing of the petition till

the date of realization, was awarded—Appeal seeking

enhancement of amount—Appellants contended that Tribunal

erred in taking income of the deceased as Rs. 750/- per month

instead of considering the fact that he was earning Rs. 2,000/

- per month and also applying the multiplier of 16 instead of

17—Deceased was in the age group of 26 to 30 years—

Held—He was a young man of 26 years and had he not met

with the unfortunate accident undoubtedly he would have

earned more as a scooter driver (who falls in the category of

a skilled worker) and also by selling garments in the various

weekly bazaars—Thus, I am inclined to assess the average

annual income of the deceased to be in the sum of Rs. 2,250/

- per month [that is Rs. 1,500/- (current income) plus Rs.

750/- (anticipated increase in income) = Rs. 2,250/- per

month]—Deducting one-fifth therefrom towards the personal

expenses of the deceased (though no deduction had been made

by the learned Tribunal), the average monthly loss of

dependency of the legal representatives of the deceased works

out to Rs. 1,800/- per month, that is Rs. 21,600/- per annum—

In the present case, as noticed above, the deceased fell in the

age group of victims between 26 to 30 years of age and thus

the appropriate multiplier to be adopted would be the multiplier

of 17, which is the multiplier approved of in the case of Sarla

Verma (Supra)—In all a sum of Rs. 3,85,000/- (Rs. Three

lacs and eighty five thousand only) is awarded to the appellants.

Bhagwati Devi and Ors. v. D.T.C. and Anr. .............. 103

— Section 168—Deceased a Govt. contractor died in a road

accident—Claim petition filed by the widow appellant no.1 and

sons appellant no.2, 3 and 4—Award challenged inter alia on

the ground that future prospects of deceased despite he being

a Govt. contractor and his income being increasing every year

were not taken into account while passing the Award—Plea

opposed by Insurance company that deceased was self

employed and his income was actually decreasing—Held, in

case of self employed Court usually takes into account only

actual income of the deceased at the time of death and a

departure from it is made only in exceptional cases—Income

Tax assessment orders placed on record showed that the

income of the deceased had been declining.

Bimla Gupta & Ors. v. Mahinder Singh and Ors. ..... 168

— Liability of financier of erring vehicle—Question raised in

appeal was as to whether financier of the erring vehicle could

be held liable to pay compensation merely on account of the

fact that he had taken the erring vehicle on superdari when

the registered owner habitually defaulted to pay the

installments—Held, in view of testimony of the financier to

the effect that he was neither the registered owner nor in

possession or control of the erring vehicle, coupled with

evidence of transport department that the erring vehicle was

transferred in the name of financier subsequent to the accident,

the superdaginama alone would not make the financier liable

to pay compensation since the determining factor is the

effective control and actual possession of the vehicle on the

date of accident.

Ramesh Chander v. Ganesh Bahadur Kami

& Ors. ............................................................................. 259

71 72

NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCE

ACT, 1985—Section 21, 22, 23 & 28—Appellant challenged

judgment acquitting Respondent for offences punishable under

Section 21, 22, 23 & 28 of Act—As per prosecution,

Respondent was apprehended by Air Custom officer at IGI

Airport, New Delhi, on suspicion of carrying Heroin

concealed in 70-75 capsules inside his body—On permission

from learned Duty Magistrate, Respondent was taken in RML

Hospital where he ejected 77 capsules—After complying with

the provisions of the Act, Respondent was arrested and on

conclusion of investigations, he was charge sheeted—Learned

Special Judge found various discrepancies in prosecution case

and thus acquitted Respondent—Acquittal challenged urging,

no discrepancy in link evidence which was duly proved by

prosecution beyond reasonable doubt—Held:- A criminal trial

is a quest for truth—The prosecution is required to prove its

case beyond reasonable doubt and not by way of perfect proof

free from all blemishes.

Customs v. Konan Jean ................................................. 776

— Section 21, 23, 28, 50, 57, 67—Customs Act, 1962—Section

120—Respondents were apprehended on their arrival IGI

Airport on suspicion of carrying some contraband substance—

Notice under Section 50 of The Act and under Section 120

of Customs Act served upon them giving them an option to

get themselves and their baggage searched before Gazetted

Officer of Customs or a Magistrate—Respondents did not

know either Hindi or English language, thus an official from

KAM Airlines who knew language of Respondents, explained

contents of notices to them—On Knowing contents,

Respondents opted search by Custom Officer—On search of

baggage, Heroin was found concealed in bottom portion of

bag in cotton cloth belt—After fulfilling requirements of Act,

Respondents were charge sheeted for offences punishable

under Section 21, 23 & 28 of Act—On conclusion of trial,

they were acquitted after finding lacunas in prosecution case

and procedural safeguards contained in Section 50 of Act were

not adhered to—Appellant challenged acquittal in appeal—It

was urged on behalf of appellant that notice under Section

50 of Act was not required to be served upon Respondents

as recovery was effected from hand bag and not from his

person—Held:- Provisions of Section 50 of NDPS Act, are

mandatory and non compliance renders recovery of illicit article

suspect—Thus, non compliance of these provisions is viewed

seriously and adverse inference is drawn against prosecution,

particulary, when accused has denied that he has served any

such notice and it has created doubt with regard to truthfulness

of prosecution witnesses.

Customs v. Mohammad Bagour ................................. 711

— Section 68(H) (I) Section 68 A(2) (d)—Section 68 B(g)—

Section 68 j—Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substance Act, 1988 (PITNDPS Act)—

Section 3(1) and 10(1)—Detention order dated 26.07.1989

issued aganist Mohd. Azad @ Avid Parvez, brother of the

petitioner—Detained w.e.f. 10.07.1991—Declaration u/s.

10(1) justifying detention beyond initial three months issued—

Detention order dated 26.07.1989—challenged before Calcutta

High Court—Unsuccessful—Special Leave Petition before the

Supreme Court dismissed—Challenge to order u/s.10(1)

successful—Detention beyond initial three months vitiated—

show cause notice u/s. 68 H (1) NDPS Act issued to the

petitioner—reply submitted—Daclaration issued and properties

forfeited to the Central Government vide order dated

16.10.1997—Appeal before the Appellant Authority—Dimissed

vide order dated 07.06.1999—Order challenged through the


properties were acquired by his father for him not taken before

the Competent Authority nor before the Appellate Authority—

No document filed either before the Competent Authority nor

before the Appellate Authority —Held—Plea after thought—

Cannot be raised for the first time in the Writ petition—The

7473

burden of proving that the property was not illegally acquired

on the person affected—The consistent findings do not call

for any interfernce—Petition dimissed with costs.


NARCOTICS & PSYCHOTROPIC SUBSTANCES ACT, —

Section 37—Bail application filed by accused before the Court

on the ground that samples taken of contraband substance

during investigation gave percentage of diacetylmorphine

(heroin) to be 86%—The fresh sample drawn during the trial

gave the percentage to be 41.3% Bail granted by trial Court

in view of major discrepancy found in the percentages of

heroin in two samples casting serious doubt regarding the

substance recovered from the accused—Trial Court also took

into account that in view of no previous involvement in any

such case under NDPS there was no likelihood of commission

of any similar offence by the accused in future—According

to trial Court accused being a foreigner could not be denied

bail merely on apprehension of absconding if otherwise entitled

to same—Trial Court imposed conditions considering accused

was a foreigner to ensure that he could not abscond—Order

of bail challenged on behalf of DRI inter alia on the ground

under Section 37 unless the Court is satisfied there are

reasonable grounds of believing that the accused is not guilty

of such offence and is not likely to commit any offence while

on bail—Also submitted that even if the second test report is

taken into consideration still purity and weight of contraband

recovered would be a commercial quantity—It was also

submitted that the difference in purity percentage could occur

due to other facts like lapse of time, improper storage, variation

in temperature and humidity etc—Held, purity percentage

change may occur due to some other factors like lapse of time,

place of storage etc but the variation in the present case is

tremendous and cannot be explained by mere passage of

time—Argument that the purity weight of contraband

substance recovered according to second sample would still

constitute a commercial quantity would be of no avail in view

of doubts having been raised about the identity of the

contraband substance recovered—Conditions imposed by the

trial Court are such that it would be difficult for the accused

to leave the country or repeat the offence in the given

circumstances.

Directorate of Revenue Intelligence v. Bitoren Dolores

Fernandez ........................................................................ 127

PREVENTION OF CORRUPTION ACT, 1947—Section 9 &

12—Petitioner preferred writ petition to seek quashing of

proceedings initiated against him upon registration of case

under Section 9 & 12 of Act—Written complaint made by

DSP, CBI alleging, petitioner approached him through one

person and offered him illegal gratification for clearing his

name from a murder case which was being investigated by

him—Complainant not willing to accept bribe, so lodged

complaint with Joint Director AC (HQ) CBI, New Delhi—

Accordingly, case registered against petitioner along with two

others and trap was laid to apprehend them—Petitioner

apprehended during trap laid for third time as in previous two

traps, attempts to apprehend failed—Petitioner raised various

arguments to allege his false implication, one of those being

investigations, were done in violation of CBI manual which

has force of law—It was urged, trap was conducted without

authority of any CBI Director and thus, trap was illegal as

per CBI manual—Held:- In case of complaint received against

a Minister or Former Minister of Union Government, it must

be put to Director CBI for proper orders—Without

authorisation by CBI Director to lay a trap against such persons

without any verification conducted, is violative of Para 8.8

of CBI Manual—Charge sheet and proceedings emanating

therefrom quashed against petitioner.

Ripun Bora v. State (Through CBI) ............................ 412

— Section 23—The challenge by means of this First Appeal is

7675

to the impugned judgment of the Railway Claims Tribunal

(RCT) which dismissed the Claim Petition filed by the parents

of the deceased, who is said to have died in an untoward

incident of falling from a train near Tilak Bridge Railway

Station, New Delhi on account of a strong jerk of the train—

The respondent/Railways pleaded that the deceased was not

a bona fide passenger and in fact no ticket was purchased by

the deceased—Also contended that assuming the ticket is

shown to have been purchased, the ticket was a general ticket

and not of a super fast train Vaishali Express and therefore

the deceased cannot be said to be a bonafide passenger of

the train Vaishali Express from which he is alleged to have

fallen down and died—The Railway Claims Tribunal found that

the deceased did not have a valid ticket—Deceased cannot be

said to be a bonafide passenger of the train in question—RCT

disbelieved the statement of eye-witness on different grounds

including that there was no prior acquaintance with the

deceased and that no statement of the witness recorded by

the police forthcoming and held the eye-witness as a ‘planted’

witness and a blatant liar/obliging witness, not a trustworthy

witness—Hence the present First Appeal. Held deceased had

a valid ticket for travel from Ghaziabad to Palwal. Railway

themselves filed a report dated 31.12.2008 of the DRMs office

and as per which the deceased Sh. Rakesh Kumar fell down

from the train while trying to get down from the train—On

the one hand, there is absolutely no evidence led on behalf of

the Railways of there being any presence of an eye-witness

or a person who immediately reached the spot after the

incident, to show that the deceased had tried to get down

from a running train, on the other hand, the appellants have

led the evidence of one Sh. Lokesh, and who is a good

samaritan and not a blatant liar/planted witness/untrustworthy

witness/or obliging witness—If allegedly he was a make-

believe witness, the onus of proof had shifted on to the

respondent/Railways once the eye-witness deposed but no

rebuttal evidence was led on behalf of the Railways—Deceased

in fact died on account of a fall from the train and not because

he was trying to get down from the train—The appellants

entitled to the statutorily fixed compensation of Rs. 4,00,000/

-. The appellants are also entitled to pendente lite and future

interest till payment at 7½% per annum simple.

Prabhu Dayal & Ors. v. Union of India .................... 121

REGISTRATION ACT, 1908—Section 72—Refusal to accept

documents for registration at threshold—Whether appealable—

Writ petition filed aggrieved by the refusal of sub-registrar to

accept documents of cancellation of General Power of

Attorney and cancellation of Will—Contention was that there

was no order in writing refusing registration—Appeal under

section 72 was not available—Only efficacious remedy was

writ of mandamus. Held—Writ petition not maintainable as

alternative remedy of appeal available—Sub Registrar to accept

each and every document presented—Issue receipt—Register

or refuse registration by recording reasons—Refusal in

contravention of procedure, verbal and without reason—

Refusal within the meaning of section 72—Therefore,

appealable.

Sheo Murti Shukla v. State (Govt. of NCT

of Delhi) ............................................................................ 40

RIGHT TO INFORMATION ACT, 2005—Section 3, 8 (1) (j)—

Constitution of India, 1950—Article 14— General Clauses

Act, 1897—Section 3 (42)—Respondent sought information

of agreement/settlement between appellant and one AL—Public

Information Officer (PIO) rejected application stating that

information had no relationship to any public activity or

interest—First appellate authority affirmed order of PIO—

Central Information Commissioner (CIC) allowed appeal of

respondent and directed appellant to provide information as

available on record—Order challenged in High Court—Plea

taken, petitioner a juristic entity is “person” in law—

Fundamental rights guaranteed by Constitution of India are

77 78

available not only to individual but also to juristic person—

CIC is wrong in its conclusion that “personal information” can

only relate to individual —Per contra plea taken, petitioner

being a public authority, every citizen is entitled to seek

information in relation to its public activities and conduct—

Rule is in favour of disclosure of information—Held—

Expression “Personal information” used in Act does not relate

to information pertaining to public authority to whom query

for disclosure of information is directed—No public authority

can claim that any information held by it is “personal”—There

is nothing “personal” about any information, or thing held by

public authority in relation to itself—Expression “personal

information” used in Act means information personal to any

other “person” that public authority may hold—It is that

information pertaining to that other person which public

authority may refuse to disclose, if that information has no

relationship to any public activity or interest vis-a-vis public

authority or which would cause unwarranted invasion of

privacy of individual—If interpretation as suggested by

petitioner were to be adopted, it would completely destroy very

purpose of Act as every public authority would claim

information relating to it and relating to its affairs as “personal

information” and deny its disclosure—Act of entering into

agreement with any other person/entity by a public authority

would be public activity—Every citizen is entitled to know on

what terms agreement/settlement has been reached by

petitioner public authority with any other entity or individual—

There is no merit in petition.

Jamia Millia Islamia v. Sh. Ikramuddin .................... 398

PREVENTION OF CORRUPTION ACT, 1988—Section 19—















with costs.


SECURITIES AND EXCHANGE BOARD OF INDIA ACT,
























8079


































of India ........................................................................... 527

— Sections 24 (1) and 27—Respondent filed a coomplaint before

Ld. CMM for the offence under Sections 24(1) and 27 of the

Act against M/s Master Green Forest Ltd—Allegations that

accused company was operating collective investment


contravention of Act and Regulations—There were allegations

against the promoters/Directions and the persons responsible

for the day to day affairs of the company, who actively

connived with each other in the commission of offence—Only

company was arrayed as an accused—Ld. ACMM vide its

order dated 15th December 2003 observed—Perusal of the

complaint discloses commission of offence punishable under

Section 24(1) and 27 of the Act and accordingly, all the

accused be summoned for 21 February 2004—Petitioners filed

the present petition seeking quashing of the proceedings

pending against them—Petitioners Contended—No specific

role is assigned to them in the complaint—Merely stating that

all the Directors and promoters connived with each other and

were in-charge and responsible for the day-to day functioning

of the company cannot fasten the vicarious liability on the

petitioners—Respondent contended that no case for quashing

is made out—Ingredients in the comlaint disclose commission

of cognizable offence—Held—Complaint clearly stated that the

promoters and Directors of the Company in-charge and


each other and have committed the offence—In the present

case the offence alleged is of running a collective investment

scheme contrary to the provisions of SEBI Act and

Regulations—No doubt Section 27 of SEBI Act makes

responsible all other Directors of the company who are

responsible and in-charge of the day-to day affairs of the

company, however in a case of conspiracy number of people

can be involved and this is the allegation of the Respondent

in the complaint. Thus, I find no merit in the contention that

even on the facts of the present case no case for proceeding

aganist the Petitioners are made out.


Board of India ............................................................... 527

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